THE  NATIONAL 

GOVERNMENT  OF  THE 

UNITED  STATES 


BY 

EVERETT  KIMBALL,  PH.D. 

PROFESSOR  OF  GOVERNMENT,  SMITH  COLLEGE 
I 


GINN  AND  COMPANY 

BOSTON     •     NEW   YORK     •    CHICAGO     •     LONDON 
ATLANTA     •     DALLAS     •     COLUMBUS     •     SAN    FRANCISCO 


ENTERED  AT  STATIONERS'  HALL 


COPYRIGHT,  1920,  BY 
EVERETT  KIMBALL 


ALL  RIGHTS   RESERVED 
220.1 


gtftenaeum 


GINN  AND  COMPANY  •  PRO- 
PRIETORS •  BOSTON  •  U.S.A. 


PREFACE 

This  book  is  a  study  of  the  national  government  of  the 
United  States.  Many  excellent  texts  have  been  issued  upon 
state,  city,  and  local  government,  and  the  presentation  of  these 
subjects  in  special  courses  gives  the  opportunity  to  devote  an 
entire  volume  to  the  national  government  alone.  The  develop- 
ment of  our  national  institutions  has  been  discussed  from  many 
points  of  view  :  political,  historical,  and  economic. 

In  discussing  this  theme  I  have  endeavored  to  show  the  his- 
torical origins  and  the  development  of  our  national  political  insti- 
tutions and  to  present  an  adequate  picture  of  the  actual  workings 
of  the  government.  But  I  have  also  attempted  never  to  lose 
sight  of  the  fact  that  the  Constitution  is  the  supreme  law  of  the 
land,  and  its  interpretation  by  the  Supreme  Court  is,  until  altered, 
authoritative.  The  important  fact  is  emphasized  that  in  all  phases 
of  our  national  life  the  government  is  a  government  of  law.  To 
make  this  clear  I  have  quoted  freely  from  the  opinions  of  the 
Supreme  Court.  There  is  a  double  advantage  in  so  doing :  the 
decisions  of  the  court  are  authoritative,  and  the  exact  Words  show 
the  process  of  arriving  at  conclusions  or,  in  the  case  of  minority 
opinions,  at  the  reasons  for  dissent.  This  feature  of  the  book 
gives  it  a  twofold  character,  that  of  a  textbook  in  which  institu- 
tions are  described  and  analyzed  and  that  of  a  source  book  in 
which  appear  the  actual  words  used  by  the  court  in  expounding  or 
limiting  the  powers  of  the  government.  To  this  end  I  have 
selected  both  historical  cases  and  present  problems,  but  rather 
by  way  of  illustrating  permanent  principles  than  for  the  sake 
of  discussing  the  merits  of  particular  problems.  It  has  seemed 
more  important  to  explain  a  principle  than  to  win  a  convert. 

iii 

414797 


iv       THE  GOVERNMENT  OF  THE  UNITED  STATES 

To  my  students  of  Smith  College  I  owe  a. debt  of  gratitude 
for  making  it  possible  for  me  to  develop  the  method  I  have 
used.  In  particular  I  wish  to  express  my  obligation  to  Professor 
G.  H.  Haynes,  Professor  E.  D.  Fite,  and  Professor  E.  J.  Wood- 
house,  who  have  read  portions  of  the  manuscript  and  proof. 
Acknowledgment  is  also  due  to  Honorable  F.  H.  Gillett, 
Speaker  of  the  House  of  Representatives,  who  most  kindly  read 
and  criticized  the  chapters  upon  "  Congress  at  Work."  But  for  all 
statements  of  opinion  and  fact  I  am  alone  responsible. 

DECEMBER  i,  1919  EVERETT  KIMBALL 


CONTENTS 

CHAPTER  PAGE 

I.  CONSTITUTIONAL  BACKGROUND  ..........  i 

II.  THE  EVOLUTION  OF  THE  CONSTITUTION  .......  18 

III.  MAKING  THE  CONSTITUTION  .     .     .........  35 

IV.  CONSTITUTIONAL  PRINCIPLES      ..........  4Z-—  • 

&X,  «^l>  POLITICAL  ISSUES  AND  PARTY  HISTORY  .......  82 

PARTY  ORGANIZATIONS      ............  i<^L~ 

THE  ELECTION  OF  THE  PRESIDENT      ........  140^*    )  & 

THE  POWERS  OF  THE  PRESIDENT    ......     f    .     .  168,           ^> 

X.  THE  ADMINISTRATION  .............  .202-—         /    2 

X.  THE  ORGANIZATION  AND  FUNCTIONS  OF  THE  EXECUTIVE 

DEPARTMENTS       ..............  242 

XI.  THE     CONSTITUTIONAL     PROVISIONS     CONCERNING    THE 

ORGANIZATION  OF  CONGRESS       .........  271 

XII.  CONGRESS  AT  WORK     .........     ....  308 


XIII.  CONGRESS  AT  WORK  (Continued)      .     .     .......  332 

XIV.  CONGRESS  AND  THE  CONSTITUTION      .     .     .     .     .     .     .     .  357 

XV.  THE  JUDICIAL  SYSTEM  OF  THE  UNITED  STATES    ... 

XVI.  THE  JUDICIAL  SYSTEM  OF  THE  UNITED  STATES  (Continued)  405 

XVII.  THE  WAR  POWERS  OF  CONGRESS    :    ........  423  v 

XVIII.  FINANCE     .     .     -  -,     .     .      ^_  ^_      ..... 


THE  REGULATION  OF  COMMERCE    .     .     '.     ......  480 

•XX.  THE  EXERCISE  OF  THE  POLICE  POWER  BY  THE  FEDERAL 

GOVERNMENT   .........          .     .     -t    •     •  521 

XXI.  FOREIGN  AFFAIRS     .     .     .     ...........  54° 

XXJJ.  THE  GOVERNMENT  OF  TERRITORIES    ........  574 

APPENDIX.  THE  CONSTITUTION  OF  TIJE  UNITED  STATES     .     .  593 

INDEX  .........     ....  609 


THE  NATIONAL  GOVERNMENT  OF 
THE  UNITED  STATES 

CHAPTER  I 

CONSTITUTIONAL  BACKGROUND 

The  Constitution  of  the  United  States  was  the  work  of  the  Theconsti- 
convention  of  1787.    This  convention,  called  for  "the  sole  pur- 
pose  of  revising  the  Articles  of  the  Confederation,"  assembled  at 
Philadelphia,  and  after  nearly  five  months  of  painstaking  labor  confederation 
produced,  not  a  revision  of  the  Articles  of  Confederation  but  an 
entirely  new  fra/neof  government. 

Although  eighteen  amendments  have  been  added  to  this  in-  Few  changes 
strument,  its  form  has  been  -vitally  altered  but  few  times.    The  fo?m  °r] 
first  ten  of  these  amendments,  expressing  the  wish  of  a  large 
proportion  of  the  members  of  the  convention  and  the  overwhelm- 
ing desire  of  the  people,  may  be  considered  a  portion  of  the  orig- 
inal document.   The  Twelfth  Amendment  was  adopted  to  remedy 
the  dangerous  defect  in  the  process  of  the  election  of  the  presi- 
dent revealed  by  the  elections  of  1800  and,  while  altering  the 
legal  process,  did  but  sanction  the  methods  made  necessary  by 
the  growth  of  parties.   The  Thirteenth,  Fourteenth,  and  Fifteenth 
Amendments  were  the  result  of  the  long  struggle  over  slavery 
culminating  in  the  Civil  War  and  the  consequent  readjustments.    • 
These  amendments,  in  addition  to  settling  these  controversies,     • 
vitally  alter  and  change  the  balance  between  the  federal  and 
state  governments  as  planned  by  the  convention.    The  Eleventh 
Amendment,  adopted  in  1798,  and  the  Sixteenth  (1913)  were 
caused  by  decisions  of  the  Supreme  Court  which  ran  counter 
to  popular  approval  and  settled  points  which  were  either  uncon- 
sidered  or  which  were  doubtful  in  the  minds  of  the  framers^  The 
Seventeenth  (1913)  represents  the  rising  strength  of  democracy, 


, GOVERNMENT  OF  THE  UNITED  STATES 


Background 
of  framers 


Modifica- 
tions by 

(i)  legislation 


(a)  judicial 
interpre- 
tation 


(3)  party  prac- 
tice 


•(4)  political 
habit 


:imb£tiefrt:  o£  tft^, cheeks, and  balances  which  the  men  of  1787 
thought  necessary.  The  Eighteenth  (1919)  is  an  attempt  to  regu- 
late by  national  authority  matters  originally  left  to  the  states, 

The  form  of  the  Constitution  is  thus  emphatically  the  work  of 
the  convention  of  1787.  But  nothing  could  be  more  false  than 
to  assume  that  the  convention  created  de  novo  our  present  system 
of  government.  Among  the  fifty-five  delegates  who  composed 
that  body  seven  had  served  as  governors  of  their  respective  states, 
twenty-eight  had  been  delegates  to  the  Continental  Congress, 
many  had  had  actual  experience  in  the  legislative  assemblies  of 
the  colonies  or  states,  and  all  were  familiar  with  the  problems  of 
government  which  faced  the  nation.  It  was  this  practical  experi-. 
ence  gained  in  the  successful  working  of  the  colonial  and  state 
constitutions  and  the  bitter  experience  of  the  unsuccessful  opera- 
tions of  the  Confederation,  rather  than  any  sudden  inspiration, 
which  produced  the  Constitution. 

Furthermore,  although  the  framework  as  designed  by  the  con- 
vention has  been  but  seldom  altered,  the  actual  working  of  the 
Constitution  has  been  and  is  being  greatly  changed.  Around  the 
original  document  there  is  a  mass  of  constantly  changing  legisla- 
tion, adopted  to  give  to  the  provisions  of  the  instrument  that 
effect  desired  at  the  particular  moment.  Hardly  a  clause  or 
phrase  of  the  instrument  has  escaped  judicial  review,  which  has 
almost  invariably  construed  or  interpreted  them  to  meet  such 
needs  as  have  been  demanded  by  the  people.  The  whole  far- 
reaching  party  system,  little  considered  and  less  understood  by 
the  framers,  has  produced  new  processes  of  government  and 
given  new  meanings  to  the  system  established  by  the  framers. 
Finally,  political  habit  and  custom  have  erected  limits  and  ex- 
tended functions  in  a  manner  unthought  of  by  the  originators. 

Thus,  in  order  to  understand  the  Constitution  and  the  system 
of  government  it  establishes  it  is  necessary  to  appreciate  the 
experience  at  the  command  of  the  framers,  to  examine  the  legis- 
lation of  Congress,  to  study  most  carefully  the  judicial  interpre- 
tation by  which  the  Supreme  Court  has  extended  or  limited  the 
powers  of  Congress  and  the  functions  and  powers  of  the  govern- 
ment. Above  all,  it  is  necessary  to  understand  the  workings  of 
that  vast  extra-legal  institution,  the.  political  party  system,  which 


CONSTITUTIONAL  BACKGROUND  3 

exists  outside  of  the  formal  document  but  which  alone  makes 
possible  the  operations  of  the  government.  And  finally  must  be 
considered  the  traditions  and  customs  which  so  often  condition 
the  working  of  the  party  system  and  the  process  of  legislation 
and  even  the  interpretation  given  by  the  courts.  From  this  point 
of  view  the  study  of  the  Constitution  is  not  merely  the  study  of 
a  formal  document  drawn  up  in  the  last  years  of  the  eighteenth 
century  but  the  interpretation  of  the  political  life  and  practices 
of  ever-changing  institutions. 

COLONIAL  TRADITIONS  AND  EXPERIENCE 

Although  different  motives  were  operative  in  the  founding  of  similarity  of 
the  thirteen  colonies,  and  although  different  systems  of  govern-  Jerieni1  and 
ment  were  tried  at  various  times,  there  was  a  general  tendency  institutions 
to  develop  institutions  which  were  practically  alike.    The  minor 
local  divergences  from  these  institutions,  although  interesting, 
are  not  of  as  much  importance  as  the  general  agreement  found 
in  the  essentials.    In  all  but  Georgia  the  fundamentals  of  the 
colonial  institutions  had  been  in  operation  for  nearly  a  century, 
while  Virginia  had  had  over  one  hundred  and  fifty  years  of 
political    experience    under    substantially   the    same   system   of 
government.    This    common   political  experience  gained   from 
generations  of  life  under  similar  institutions  was  of  the  greatest 
importance  to  the  makers  of  the  Constitution, 

From  their  foundation  to  the  Revolution  the  colonies  had  been  written 

T    .  .  ,-r^  ,    .       constitutions 

accustomed  to  written  constitutions.  1  hese  were  expressed  in  an<i  colonial 
a  grant,  a  charter,  or  in  royal  instructions,  but  in  whatever  form  te«islat10 
found  they  had  the  nature  of  a  fundamental  law.  They  were 
unchangeable  by  the  ordinary  process  of  legislation  and  depend- 
ent solely  upon  the  legal  sovereign  of  England,  which,  after  1689, 
was  Parliament.1  Acts  of  the  colonial  assemblies  contrary  to 
these  fundamental  charters,  or  constitutions,  were  void  in  theory, 
as  being  tdtra  vires,  and  in  practice  were  generally  disallowed 
by  the  Crown.  In  those  colonies  where  the  charter  provided 
for  a  periodical  submission  of  colonial  acts  the  review  of  legisla- 
tions was  automatic.  In  other  colonies,  since  the  right  of  appeals 

1  Campbell  v.  Hall,  }.  B.  Thayer,  Cases  in  Constitutional  Law,  Vol.  I,  p.  40, 


THE  GOVERNMENT  OF  THE  UNITED  STATES 


Representa- 
tive assem- 
blies 


The  council 


to  the  king  in  council  was  insisted  upon,  colonial  legislation 
might  possibly  have  to  pass  the  scrutiny  of  the  law  officers  of 
the  Crown.  Thus  long  experience  had  accustomed  the  colo- 
nists to  written  constitutions,  beyond  the  competency  of  their 
legislatures  to  change,  and  also  to  a  semijudicial  review  of  their 
legislation  with  the  possibility  of  the  annulment  of  their  acts. 

In  the  majority  of  the  colonies,  moreover,  all  colonial  legisla- 
tion was  subject  to  the  executive  veto  of  the  governor.  In  the 
royal  provinces,  which  numbered  eight  at  the  time  of  the  Revo- 
lution, the  laws  to  be  valid  must  receive  the  approval  of  the 
Crown.  In  the  proprietary  provinces1  the  assent  of  the  pro- 
prietor was  in  theory  required,  and,  in  the  case  of  Delaware 
and  Pennsylvania,  the  laws  were  also  submitted  to  the  Crown. 
In  Rhode  Island  and  Connecticut  alone  legislation  was 
unhampered  by  executive  control. 

Almost  from  their  foundation  the  majority  of  the  colonies 
had  been  accustomed  to  representative  assemblies..  Whatever 
may  have  been  the  original  differences  in  their  composition 
and  powers,  by  the  era  of  the  Revolution  they  approximated 
a  common  type.  In  all  the  colonies,  except  Pennsylvania,  the 
legislature  consisted  of  two  houses,  a  representative  assembly 
more  or  less  popularly  chosen  and  a  council. 

In  Massachusetts,  Rhode  Island,  and  Connecticut  the  council 
was  elected.  Thus  it  closely  reflected  the  sentiments  of  the 
colonists,  which  in  Massachusetts  were  often  in  opposition  to 
the  appointed  royal  governor.  In  the  other  colonies  the  council 
was  appointed  either  by  the  Crown  or  by  the  proprietor  on  the 
nomination  of  the  governor,  who  also  had  the  power  of  removal. 
Thus  the  council  was  usually  found  on  the  side  of  the  governor 
in  a  dispute  with  the  representatives.  The  council,  except  in 
Pennsylvania,  possessed  the  usual  functions  of  a  second  chamber 
in  legislation  and  discussed,  amended,  and  voted  the  measures 
sent  to  it  from  the  representatives.  Moreover,  in  all  the  colo- 
nies the  council  advised  the  governor  in  matters  of  adminis- 
tration, in  many  cases  shared  with  him  the  responsibility 
of  appointments,  and  with  him  formed  the  highest  court  of 
appeal  in  the  colony.  It  thus  performed  the  dual  function 

1  Maryland,  Delaware,  Pennsylvania. 


CONSTITUTIONAL  BACKGROUND 


5 


of  the  upper  house  of  a  legislative  assembly  and  the  advisory 
council  of  the  executive. 

The  representative  assembly  in  every  colony  was  chosen  by  The  suffrage 
popular  vote,  and  everywhere  the  qualifications  for  suffrage 
were  vexatious  and  restrictive.  In  every  colony  a  property 
qualification  was  required.  In  Massachusetts,  by  the  charter  of 
1691,  which'  continued  until  the  Revolution,  the  franchise  was 
restricted  to  forty-shilling  freeholders  or  possessors  of  other 
property  to  the  value  of  forty  pounds.  New  York  had_a_some- 
what  similar  qualification,  but  also  granted  the  suffrage  to  all 
members  of  the  municipal  corporations  of  Albany  and  New 
York.  Pennsylvania  granted  the  franchise  to  all  who  possessed 
fifty  acres  of  land  or  fifty  pounds  of  lawful  money.  Virginia 
required  fifty  acres  without  a  house,  or  twenty-five  acres  with  a 
house  at  least  twelve  feet  square,  or  in  towns  a  lot  or  part  of 
a  lot  with  a  house  twelve  feet  square  thereon.  The  effect 
of  these  restrictions  upon  the  voting  population  was  striking. 
It  is  difficult  to  obtain  exact  figures,  but  Dr.  A.  E.  McKinley 
brings  forward  the  following  significant  facts  and  conclusions : 

The  franchise  was  more  widely  exercised,  if  not  more  widely  con- 
ferred, in  Virginia  than  in  the  more  northern  colonies.  .  .  .  [In  New 
England]  the  potential  voters  vary  from  one  sixth  to  one  fiftieth  of  the 
population,  and  the  actual  number  of  voters  shows  almost  an  equal 
variation ;  Massachusetts  and  Connecticut  showing  at  times  only  two 
per  cent  of  actual  voters  among  the  population,  where  perhaps  sixteen 
per  cent  were  qualified  electors,  and  New  York  City  and  Virginia 
showing  the  far  larger  proportion  of  eight  per  cent  of  the  population 
as  actual  voters.1 

^Contrary  to  English  practice  the  colonial  idea  of  apportion-  Apportion- 

,,      mentofrepre- 

ment  was  to  grant  representatives  by  general  law  and  roughly  sentatives 
according  to  population,  In  general,  towns,  villages,  or  parishes 
were  entitled  to  one  or  more  representatives  either  singly  or  in 
combination,  and  there  was  some  attempt  made  to  add  to  the 
number  from  larger  communities.  There  were  obvious  exceptions 
to  this  rule,  especially  in  South  Carolina  and  Pennsylvania.  In 
South  Carolina  the  representatives  were  apportioned  according 

1  A.  E.  McKinley,  The  Suffrage  Franchise  in  the  Thirteen  English  Colonies, 
University  of  Pennsylvania  Publications,  p.  487.  , 


6         THE  GOVERNMENT  OF  THE  UNITED  STATES 

to  the  parishes,  which  were  of  most  unequal  population,  while 
in  Pennsylvania  the  Quaker  counties  of  the  east,  although  in 
the  minority,  had  twice  the  number  of  representatives  appor- 
tioned to  the  western  counties.  These  and  other  inequalities  in 
apportionment  were  increasing  from  the  natural  growth  of  the 
country  and  because  of  the  instructions  of  the  British  government, 
which  sought  to  limit  the  incorporation  of  towns  with  the  right  of 
representation.  The  colonists,  furthermore,  had  departed  from 
the  English  practice  in  another  way,  in  that,  generally,  only 
residents  of  the  districts  were  chosen  as  representatives.  In 
fact,  it  may  be  said  that  if  the  colonists  had  been  allowed  to 
develop  their  own  ideas  without  English  restrictions,  they  would 
have  probably  developed  a  system  of  apportionment  and  repre- 
sentation still  further  differing  from  the  English  practice  and 
more  nearly  approaching  the  present  system. 

The  colonial  assemblies  thus  chosen  claimed  full  power  to 
regulate  their  domestic  affairs.  In  legislation  the  assent  of  the 
Crown  was  necessary,  but  by  means  of  delays  and  the  passage 
of  temporary  acts  the  assemblies  frequently  succeeded  in  accom- 
plishing their  ends  in  spite  of  royal  disapproval.  In  finance 
the  assemblies  claimed  exclusive  power  and  maintained  their 
right  to  lay  all  taxes  levied  within  the  colonies  and  to  make 
appropriations*  This  control  of  taxation  and  appropriation  gave 
the  authorities  in  England  the  greatest  trouble.  Again  and 
again  the  assemblies  successfully  resisted  the  demands  of  the 
royal  governors,  even  though  they  were  supported  by  instructions 
from  the  Crown.  Not  only  did  the  assemblies  maintain  this  right 
but  they  utilized  it  to  obtain  other  concessions.  Because  of  the 
right  to  make  appropriations  they  claimed  the  right  to  pass 
upon  the  necessity  of  the  object  for  which  the  appropriations 
were  desired  and  in  some  instances  vested  the  expenditure  of 
the  money  and  the  auditing  of  the  accounts  in  officers  of  their 
own  appointment.  By  threatening  to  withhold  or  by  actually 
refusing  to  make  appropriations,  unless  some  grievance  was 
redressed  or  privilege  guaranteed,  the  assemblies  won  for  them- 
selves constitutional  and  legal  rights  which  were  invaluable  to 
the  colonists.  In  short,  the  assemblies  regarded  themselves  as 
possessed  of  the  same  rights  as  the  House  of  Commons,  and, 


CONSTITUTIONAL  BACKGROUND  7 

quoting  precedents  from  the  struggle  between  the  Commons 
and  the  Crown,  they  sought  to  place  themselves  in  a  similar 
position.  It  was  this  legislative  experience  in  the  assemblies 
which  taught  the  colonists  the  lessons  of  self-government  and 
gave  their  leaders  the  necessary  training  in  practical  politics. 

In  the  eight  royal  provinces  the  provincial  governor  was 
appointed  by  the  Crown  and  occupied  the  dual  position  of  the  cial«overnor 
representative  of  the  British  government  and  the  highest  colo- 
nial executive.  In  this  last  position  his  powers  are  significant 
in  showing  the  result  of  colonial  experience.  The  royal. governor 
was  charged  with  the  supervision  and  the  enforcement  of  the 
laws  and  the  maintenance  of  peace  and  order.  He  was  com- 
mander in  chief  of  the  colonial  militia  and  commissioned  the 
higher  military  officers.  He  had,  with  his  council,  the  power 
to  appoint  and  remove  the  civil  officers  and,  except  in  Massa- 
chusetts, could  remove  the  members  of  his  council.  As 
chancellor  he  had  important  judicial  duties  in  hearing  appeals 
from  the  lower  courts,  and  he  also  had  the  power  to  grant 
reprieves  and  pardons.  In  addition  to  his  executive  powers'  he 
had  wide  power  in  legislation.  Except  in  Massachusetts  he 
nominated  the  council,  and  in  all  the  royal  provinces  he  had 
the  right  to  summon,  prorogue,  and  dissolve  the  assembly.  He 
attempted  to  influence  legislation  by  messages  and  addresses  to 
the  assembly  and  by  debate  in  the  council,  over  which  he  pre- 
sided. Through  his  veto  power  he  could  check  any  bill  after  it 
had  passed  both  the  house  of  representatives  and  the  council. 

These  powers,  however,  were  both  extended  and  limited  by  Actual  powers 
the  political  influence  of  the  governor,  by  his  instructions  from 
England,  and  by  the  political  development  of  the  province. 
Through  his  power  of  appointing  the  returning  officers  for 
elections  to  the  assembly  the  governor  sometimes  succeeded 
in  packing  the  house  of  representatives  with  his  adherents, 
but  more  often  he  utilized  his  social  position  for  whatever 
political  influence  he  might  possess.  His  influence  and  popu- 
larity, however,  were  seriously  diminished  by  his  instructions 
from  the  English  government.  His  powers  were  under  close 
scrutiny  and  supervision,  and  he  was  frequently  forced  to  urge 
upon  the  province  a  policy  which,  however  wise  it  might  be  for 


8         THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  governor 
in  proprietary 
colonies 


The  governor 
in  Connecti- 
cut and  Rhode 
Island 


Influence  on 
state  consti- 
tutions 


The  colonial 

judicial 

system 


Appeals  to 
the  Crown 


the  interests  of  the  empire,  aroused  local  dissatisfaction  and 
opposition.  Finally,  the  assemblies,  through  the  power  to  make 
or  withhold  appropriations,  developed  such  political  skill  that 
they  were  able  to  check  the  designs  and  many  times  to  gain 
the  compliance  of  the  stiffest  provincial  governors. 

In  the  proprietary  provinces  the  proprietor,  when  in  the 
colony,  assumed  most  of  the  functions  of  the  governor ;  in  his 
absence  they  were  performed  by  a  deputy  of  his  appointment. 
These  prerogatives  varied  greatly  from  Maryland,  where  the 
power  of  the  governor  was  most  far-reaching,  to  Pennsylvania, 
where  the  assembly  sat  as  a  single  chamber  without  the  council 
and  was  almost  free  from  executive  control.  By  the  charters  of 
Connecticut  and  Rhode  Island  the  governors  were  elected  annu- 
ally by  the  respective  assemblies  and  were  not  distinct  officials, 
but  acted  only  in  conjunction  with  the  council,  which  was  likewise 
chosen  by  the  assembly.  In  neither  of  these  colonies  did  the 
governor  have  the  power  of  veto  over  the  acts  of  assembly. 

There  were  other  minor  variations  in  the  powers  of  the  gov- 
ernor in  the  different  colonies.  But  in  general  the  theoretical 
and,  to  a  large  extent,  the  actual  powers  of  the  royal  governors 
were  great  enough  to  cause  the  framers  of  the  first  state 
constitutions  to  limit  them  decidedly.  Thus  the  new  executive 
approached  the  type  of  the  Connecticut  governor  rather  than 
that  of  the  provincial  governor. 

The  courts  of  the  different  colonies  had  many  features  in  com- 
mon and  all  enforced  English  common  law,  the  colonial  stat- 
utes, and  the  acts  of  Parliament  which  applied  to  the  colonies. 
In  every  colony  there  was  a  threefold  organization  —  justices  of 
the  peace  for  petty  cases,  county  courts  for  all  but  capital  cases, 
and  a  court  of  appeal.  From  the  colonial  court  of  appeal 
appeals  could  be  carried  to  the  king  in  council.  Early  in  colo- 
nial history  this  claim  had  been  resisted.  Massachusetts,  for 
example,  passed  acts  to  forbid  such  appeals,  and  throughout  the 
colonial  period  it  could  be  used  only  in  important  cases.  The 
English  government,  however,  was  insistent,  and  appeals  were 
carried  to  England  not  only  from  the  royal  provinces  but  from 
Connecticut  and  Rhode  Island,  the  most  independent  of  the 
colonies.  The  procedure  was  complicated,  costly,  and  tedious. 


CONSTITUTIONAL  BACKGROUND  9 

but  in  time  the  right  of  appeal  came  to  be  regarded  by  the  colo- 
nists as  a  safeguard  against  local  injustice.  From  a  constitu- 
tional point  of  view  it  served  to  keep  colonial  legislation  within 
the  limits  set  by  the  charters  and  to  accustom  the  assemblies 
to  an  occasional  judicial  review  of  their  acts  as  well  as  to  give 
an  opportunity  for  correcting  faulty  judicial  decisions. 

Neither  the  political  nor  the  social  life  of  the  colonists  was  The  political 
democratic.     In  every  colony  except   Rhode   Island  and  Con-  SeoTthe 
necticut  there  was  an  ever-increasing  number  of  appointed  offi-  c°i°niesnot 

democratic 

cials  —  governors,  members  of  the  councils,  judges,  and  officials 
who  owed  their  positions  neither  to  the  electorate  nor  to  the 
repfesentatives  in  the  assemblies.  They  constituted  the  govern- 
ing class,  which  monopolized  the  offices  and  rewards  both  social 
and  material  and  occupied  the  highest  rank  both  in  society  and 
in  government. 

In  the  Southern  colonies  and  in  New  York  and,  to  a  lesser 
degree,  in  Pennsylvania  certain  families  and  their,  connections 
held  vast  estates  and  constituted  a  landed  aristocracy  above  and 
beyond  the  possible  ambitions  of  the  slaves,  indented  servants, 
and  tenants  who  cultivated  the  land.  The  rich  merchants  of 
Philadelphia,  New  York,  Charleston,  and  Boston  represented  the 
moneyed  interests  and  usually  were  allied  in  purpose  and  feeling 
with  the  landed  class.  In  New  England  the  clergy  and  the  col- 
leges furnished  an  element  which  ranked  in  influence  and  preroga- 
tives above  the  majority  of  the  people.  Even  the  representatives 
to  the  assemblies  stood  for  property,  since  the  qualification  for  the 
franchise  was  so  high  that  only  the  well  to  do  could  vote. 

Resistance  to  England  has  often  been  mistaken  for  a  desire 
for  equality.    But  there  is  little  evidence  to  show  that  until  the       9 
era  of  the  Revolution  the  majority  of  the  well-to-do  colonists 
were  greatly  dissatisfied  with  their  institutions.    The  leaders  still 
held  a  view  of  democracy  which  was  not  unlike  that  of  John 
Winthrop  who  wrote  of  "  the  unwarrantableness  ...  .of  referring 
matters  of  counsel  or  judicature  to  the  body  of  the  people,  quia 
the  best  part  is  always  the  least,  and  of  that  best  part  the  wiser' 
part  is  always  the  lesser."  1 

1  Life  and  Letters  of  John  Winthrop,  Vol.  II,  p.  237  ;  quoted  by  Edward 
Channing,  History  of  the  United  States,  Vol.  I,  p.  348. 


merits 


10      THE  GOVERNMENT  OF  THE  UNITED  STATES 
»> 

REVOLUTIONARY  EXPERIMENTS 

Therevoiu-  The  separation  from  Great  Britain  involved  a  double  task- 
two  problems  military  and  constitutional.  By  force  of  arms  it  was  n'ecessary 
twtPgo°vera-d  to  Put  an  end  to  the  autnority  of  England.  To  maintain  the 
revolutionary  army  it  was  necessary  to  establish  some  system  of 
government  capable  of  supplying  money  and  directing  the  move- 
ments of  the  forces.  It  was  equally  necessary  that  this  govern- 
ment should  possess  the  confidence  of  the  people  and  be  able 
to  preserve  peace  and  order  within  the  states.  This  twofold  task 
was  performed  by  two  sets  of  governments  —  the  Continental 
Congress,  which  represented  the  union  of  the  states,  directed  the 
military  operations,  and  conducted  the  foreign  policy  ;  and  the 
state  governments,  which  grudgingly  responded  to  the  requisi- 
tions of  Congress  for  men  and  money,  but  which  preserved 
order  and  furnished  the  sole  legal  authority  within  the  United 
States  until  the  adoption  of  the  Articles  of  the  Confederation 
in  1783.  Tnus,  although  the  Continental  Congress  conducted 
the  greater  part  of  the  war,  accepted  great  responsib-'lities,  and 
was  tacitly  accepted  by  the  different  states,  it  was  a  i  evolutionary 
body  without  legal  authority.  The  states,  rather  than  Congress, 
first  established  a  legal,  in  contradistinction  to  a  revolutionary, 
system  of  government. 

BEGINNINGS  OF  STATE  GOVERNMENT 

The  preliminary  work  of  spreading  revolutionary  doctrines  and 
molding  public  opinion  was  accomplished  by  unofficial  means. 
Individuals  or  groups  of  men  under  the  influence  of  some  more 
advanced  agitators  formed  unofficial  groups  where  opposition  to 
Great  Britain  was  discussed.  The  next  step  was  to  get  some 
quasi-official  authorization  for  their  action,  and  this  was  sought 
either  from  the  town  meeting  or  from  the  colonial  assembly. 
Thus,  in  Boston,  the  Town  Meeting  in  1772  resolved,  on  the 
motion  of  Samuel  Adams,  to  appoint  a  committee  of  twenty-one 
"  to  state  the  Rights  of  the  Colonists  ...  to  communicate  and 
publish  the  same  to  the  several  Towns  ...  as  the  sense  of  this 
Town.  .  .  .  Also  requesting  from  each  Town  a  free  communi- 
cation of  their  sentiments  on  this  subject."  Throughout  the 


committees 


CONSTITUTIONAL  BACKGROUND  II 

Pmvince  there  was  a  hearty  response,  and  in  almost  every  town 
either  a  self-constituted  group  or  a  committee  appointed  by  the 
town  meeting  began  to  correspond  with  similar  committees  in 
other  towns  and  in  particular  with  the  committee  in  Boston.  In 
Virginia  the  House  of  Burgesses,  by  a  resolution,  March  12,  1773, 
established  a  committee  of  eleven  "  to  keep  up  and  maintain  a 
correspondence  and  communication  with  our  sister  colonies,  ..." 
thus  pointing  the  way  to  extra-legal  methods  of  intercolonial 
communication  and  union.  Both  the  Massachusetts  and  Virginia 
plans  were  adopted  by  the  other  colonies,  and  before  hostilities 
began  or  the  authority  of  England  was  seriously  questioned  there 
existed  a  framework  of  revolutionary  government.  In  some  colo- 
nies this  organization  was  of  an  advanced  type.  New  Jersey, 
for  example,  had  town,  county,  and  colonial  committees,  directly 
chosen  in  the  first  instance  and  by  delegation  from  the  lower 
to  the  higher  committees. 

It  should  be  remembered,  however,  that  this  apparent  wide  The  influence 

r  i       t «  T  T  °f  the  com- 

representation  was  representation  of  one  party  only.       Honest  mitteesof 

men"  —in  other  words,  revolutionists  —  were  alone  chosen  for 
these  committees.  Loyalists  and  those  whose  opposition  to  Great 
Britain  was  lukewarm  had  little  influence  and  received  scant 
consideration.  Nevertheless,  faulty  as  these  committees  were  in 
origin  and  composition,  they  were  extremely  powerful  and  by 
means  of  influence,  intimidation,  and  sometimes  violence  enforced 
their  opinions.  Moreover,  as  the  authority  of  the  royal  govern- 
ments weakened  and  finally  disappeared,  these  committees  and  the 
conventions  they  summoned  became  the  only  form  of  organized 
government  within  the  provinces.  Obedience  and  submission  to 
their  acts  gave  a  semilegal  sanction  to  their  revolutionary  power 
until  the  state  constitutions  could  be  framed  and  adopted.  In 
another  way  these  committees  contributed  to  the  ease  with  which 
the  colonists  established  the  new  governments.  Either  by  the 
choice  of  delegates  to  the  provincial  congresses  or  by  means  of 
letters,  these  bodies  conveyed  to  the  central  revolutionary  body  in 
.each  colony  the  sentiments  and  ideas  of  the  people  far  more  quickly 
,  than  an  election  would  have  done,  had  such  been  possible  in  the 
presence  of  the  British  forces.  Thus,  of  the  fourteen  constitu- 
tions which  were  adopted  .between  1776  and  1783  only  two  were 


12       THE  GOVERNMENT  OF  THE  UNITED  STATES 

formally  submitted  to  the  people  for  ratification,  while  four  were 
informally  published  before  final  action  was  taken  upon  them. 
Eight  of  the  new  constitutions,  however,  were  adopted  by  these 
purely  revolutionary  bodies  without  consultation  and  without 
giving  the  people  an  opportunity  to  express  criticism  or  approval. 
Irregular  as  this  method  seems,  it  was  not  seriously  questioned 
at  the  time,  but  recognized  as  the  most  effective  method  to 
reestablish  some  form  of  government. 

FORMATION  OF  STATE  CONSTITUTIONS 

The  alteration  of  the  Massachusetts  charter  brought  about 
the  first  step  in  the  legal  development  of  the  state  constitutions. 
The  new  royally  appointed  councilors  were  forced  to  resign,  but 
the  towns  elected  their  representatives  to  the  assembly,  while 
committees  of  safety  and  county  conventions  urged  that  a'  pro- 
vincial congress  should  be  called.  General  Gage,  the  last  provin- 
cial governor,  attempted  to  prevent  the  meeting  of  the  assembly 
he  had  summoned,  but  the  representatives  gathered  at  Salem 
and  voted  that  they  and  such  others  as  might  be  elected  should 
become  a  provincial  congress.  Meeting  at  Concord,  this  body 
took  up  the  double  task  of  resistance  and  government  and 
state  consti-  applied  to  the  Continental  Congress  for  advice.  The  answer 
of  Congress  concerning  the  form  of  government  to  be  adopted 
was. in  the  resolution  of  June  9,  1775.  It  advised  the  Massachu- 
setts convention  to  write  to  the  towns  having  representation, 
asking  them  to  choose  representatives  as  under  the  old  charter, 
and  that  the  representatives  so  chosen  should  elect  a  council 
which  should,  together  with  the  representatives,  form  an  assem- 
bly and  exercise  the  power  of  government.1  This  advice  was 
followed,  and  Massachusetts  continued  until  1780  to  operate 
under  her  old  system  of  government  minus  the  royal  governor. 
A  year  later  Congress  took  a  bolder  tone,  and  in  response  to 
the  repeated  requests  from  the  states  recommended  that  "  where 
no  government  sufficient  to  the  exigencies  of  their  affairs  has 
been  hitherto  established,  [the  states]  adopt  such  government  as 
shall,  in  the  opinion  of  the  representatives  of  the  people,  best 

1-  Journals  of  the  Continental  Congress,  Vol.  II,  pp.  83-84. 


tutions 
framed  on 
the  advice 
of  Congress 


CONSTITUTIONAL  BACKGROUND  13 

conduce  to  the   happiness  and  safety  of  their  constituents   in 
particular,  and  America  in  general."  1 

Following  this  advice  all  the  colonies,  except  Connecticut  and  Methods  of 
Rhode  Island,  whose  charters   needed   scarcely  any  alteration,  fl^consti- 
framed  constitutions  in  the  representative  assemblies,  which  had  tutions 
displaced  the  colonial  legislatures.    In  the  case  of  Virginia  and 
South  Carolina  these  constitutions  were  adopted,  like  any  other 
legislative  act,  in  the  assemblies  chosen  for  general  purposes. 
Most  of  the  other  constitutions,  however,  were  accepted  by  dele- 
gates chosen  with  the  question  of  framing  a  government  clearly 
in  mind.    In  Maryland,  Pennsylvania,  North  Carolina,  and  South 
Carolina,  in   1778,  the  work  of  the  assemblies  was  informally 
submitted  to  the  people,  while  in  Massachusetts  in  1779  and  in 
New  Hampshire  in  1783  special  constitutional  conventions  were 
called  to  frame  the  documents,  and  the  results  were  submitted 
to  the  people  for  ratification,  a  method  which  has  been  followed, 
with  varying  fidelity  ever  since. 

The  constitutions  produced  by  these  bodies  reflect  both  the 
colonial  experience  and  the  revolutionary  theories.  In  seven  of 
the  documents  a  Bill  of  Rights  precedes  the  actual  frame  of 
government,  and  in  many  of  the  others  sections  and  clauses 
are  inserted  which  in  a  less  formal  degree  indicate  the  politi- 
cal philosophy  of  the  framers. 

In  general  the  frame  of  the  government  continued  the  insti-  similarity  of 
tutions  with  which  the  people  were  familiar,  for  all  but  Pennsyl-  tionai 
vania  provided  for  a  single  executive  and  a  bicameral  legislature  f 
and  a  system  of  courts.2     In  all  cases  the  separation  of  these 
departments  was  decreed  in  theory  if  not  in  actual  terms. 

Colonial  experience  had  taught  the  danger  of  a  too  powerful  The  governor 
executive,  and  in  every  instance  the  state  governor  had  far  less 
power  than   his    colonial    predecessor.     In  the  first  place   the 

^Journals  of  the  Continental  Congress,  Vol.  IV,  p.  342. 

2  The  constitution  of  Pennsylvania  of  1776  established  an  executive  council 
elected  by  the  voters  to  serve  for  three  years  instead  of  a  governor.  Moreover, 
her  legislature  alone  of  all  the  colonies  consisted  of  a  single  house  —  a  house 
of  representatives.  The  constitutions  of  both  Pennsylvania  and  Vermont  pro- 
vided for  a  council  of  censors  to  review  the  acts  of  the  legislature,  to  report  to 
the  people,  and  to  advise  constitutional  amendments.  Vermont  in  1786  and 
Pennsylvania  in  1790  adopted  constitutions  of  the  more  familiar  type. 


14      THE  GOVERNMENT  OF  THE  UNITED  STATES 

governor  was  elected  by  the  voters  in  New  England  and  New 
York,  and  by  the  legislatures  in  the  other  colonies.  New  York 
and  Delaware  provided  for  a  three-year  term,  South  Carolina 
for  a  two-year  term  ;  elsewhere  the  governors  were  chosen  annu- 
ally. Moreover,  in  six  of  the  states  there  were  restrictions  upon 
hi»  reelection  varying  from  a  four-year  interval  in  South  Carolina 
to  three  years  in  seven  in  Virginia.  Everywhere  the  governor 
had  lost  his  independent  power  of  appointment  and  shared 
this  prerogative  either  with  a  council  or  with  the  assembly.  In 
Massachusetts  the  governor  retained  a  qualified  veto,  in  New 
York  he  shared  it  with  a  council  of  revision ;  elsewhere  the 
newly  elected  state  executive  had  no  veto  upon  the  acts  of  the 
legislature.  The  powers  thus  taken  from  the  governor  were  given 
to  the  legislature,  but  during  the  war  unofficial  committees  fre- 
quently exercised  extra-constitutional  powers,  or  the  legislature 
•  conferred  upon  the  executive  greater  powers  than  were  granted 
him  by  the  constitution.  For  example,  the  convention  which 
adopted  the  constitution  of  Virginia  passed  the  significant  reso- 
lution that  "  superadded  to  the  powers  given  to  the  governor  and 
privy  council  by  the  form  of  government  passed  by  this  conven- 
tion, the  governor,  with  the  advice  of  the  privy  council,  shall 
have  and  possess  all  the  powers  and  authority  given  to  the  com- 
mittee of  safety  by  an  ordinance  appointing  a  committee  of 
safety  passed  at  Richmond,  July,  1775,  or  by  any  resolution  of 
the  convention."  1  Thus  the  inconvenience  of  a  weak  executive 
was  not  felt,  and  the  colonial  prejudice  against  a  strong  one 
was  satisfied. 

Theiegis-  The  legislature  was  magnified  in  every  constitution.     In  all 

but  South  Carolina  (1778)  the  representatives  were  chosen  an- 
nually, but  the  qualifications  remained  high  in  form  although 
they  were  disregarded  in  many  instances.  In  almost  every  state 
there  was  higher  qualification  for  a  representative  than  for  voter, 
and  in  Massachusetts,  Maryland,  and  North  Carolina  a  still  higher 

Property  qualification  for  a  member  of  the  upper  house.  It  should  be  re- 
membered that  the  revolutionary  bodies  which  framed  these  con- 
stitutions were  usually  chosen  by  voters  under  the  old  colonial 
qualifications,  which  were  not  low,  nor  is  there  any  evidence  to 

1  W.  F.  Dodd,  The  Revision  and  Amendment  of  State  Constitutions,  p.  31. 


CONSTITUTIONAL  BACKGROUND  15 

show  that  the  framers  of  these  constitutions,  however  much  they 
might  embrace  the  doctrine  of  the  natural  rights  of  man,  con- 
sidered universal  suffrage  as  one  of  them.  Human  rights  were 
protected,  but  the  franchise  was  restricted  to  the  propertied  class. 
The  legislature  in  every  instance  had  the  power  to  pass  laws, 
levy  taxes,  and  appropriate  money.  In  addition,  in  many  states 
the  right  of  initiating  money  bills  was  confined  to  the  lower  house, 
and  in  some  instances  the  upper  house  was  prohibited  from 
amending  these.  In  three  instances  the  practice  of  Parliament 
was  followed,  and  the  representatives  were  given  the  right  of 
impeachment  with  trial  before  the  Senate.  In  Virginia  and  North 
Carolina,  however,  the  trials  were  before  the  courts  of  law. 

The  political  theories  found  in  these  constitutions  were  in  Political 
some  ways  more  significant  than  the  framework  of  government. 
Did  the  state  legislatures  consider  themselves,  like  Parliament, 
sovereign  bodies  whose  acts  were  beyond  the  power  of  question, 
and  were  they  capable  of  amending  the  constitutions  under  which 
they  assembled  ?  Or  were  the  constitutions  —  like  the  colonial 
charters  —  fundamental  laws,  beyond  the  competence  of  the  legis- 
lature to  alter,  and  intended  to  serve  as  limits  to  the  legislative 
power  of  assemblies  ?  These  questions  can  best  be  answered 
from  a  study  of  the  Bills  of  Rights  found  in  the  several  consti- 
tutions, from  the  methods  provided  for  amendment,  and  from 
the  attitude  of  the  judges. 

Seven  states  prefixed  Bills  of  Rights  to  their  constitutions.1  Bins  of 
These  repeat  the  familiar  principles  of  the  Great  Charter  and 
the  English  Bill  of  Rights  concerning  property,  general  warrants, 
trials,  excessive  bail,  unusual  punishments,  freedom  of  the  press, 
and  the  like.  In  every  declaration,  however,  are  found  clauses 
repeating  the  theories  of  Locke,  made  familiar  to  the  colonists 
by  Otis,  Henry,  and  Jefferson  and  embodied  in  the  Declaration 
of  Independence,  invoking  the  doctrine  of  the  natural  rights  of 
the  people  in  contradistinction  to  the  government  established 
by  them.  Thus,  Article  IV  of  the  Pennsylvania  Declaration  of 
Rights  reads  :  "  That  all  power- being  originally  inherent  ip,  and 
consequently  derived  from,  the  people ;  therefore  all  officers  of 

1  Maryland,  Massachusetts,  New  Hampshire,  North  Carolina,  Pennsylvania, 
Vermont,  Virginia. 


1 6   THE  GOVERNMENT  OF  THE  UNITED  STATES 

government,  whether  legislative  or  executive,  are  their  trustees 
and  servants,  and  at  all  times  accountable  to  them."  These  for- 
mal declarations  were  intended  to  express  principles  which  were 
beyond  the  power  of  the  legislature  to  touch,  or  rights  reserved 
to  the  people.  The  sovereignty  of  the  people  is  thus  recognized, 
and  the  constitution  becomes  but  a  method  of  the  exercise  of 
that  sovereignty,  at  once  a  grant  of  authority  to  the  government 
and  a  limitation  upon  its  power. 

In  the  method  of  amendment  or  alteration  there  was  no  such 
clear  unanimity  of  practice.  Pennsylvania  and  Vermont  provided 
for  a  council  of  censors  to  inquire  whether  the  constitution  had 
been  observed,  and  who  could,  by  a  two-thirds  vote,  call  con- 
ventions to  revise  or  amend  the  constitutions ;  but  this  peculiar 
institution  disappears  in  the  second  constitutions,  which  were 
soon  adopted  by  the  respective  states.  Georgia,  Massachusetts, 
and  New  Hampshire  provide  for  the  calling  of  constitutional 
conventions  by  the  legislatures,  and  in  New  Hampshire  this  is  a 
requirement  after  seven  years.  The  constitutions  of  Maryland, 
Delaware,  and  South  Carolina  were  alterable  by  the  legislatures 
by  a  slightly  different  process  from  that  required  for  ordinary 
legislation,  while  there  was  no  provision  for  amendment  in  the 
constitutions  of  the  other  states  and  consequently  they  could  be 
altered  by  the  ordinary  process  of  legislation.  Yet  even  in  the 
case  of  these  states  amendments  and  new  constitutions  were 
framed  not  by  the  legislatures  but  by  conventions.1  It  is  there- 
fore fair  to  believe  that  the  absence  of  provisions  for  amendment 
indicate  lack  of  consideration  rather  than  a  deliberate  purpose  to 
erect  sovereign  and  constituent  bodies. 

The  power  of  the  courts  to  annul  laws  passed  by  the  legisla- 
ture gives  still  more  evidence  of  the  binding  force  of  the  state 
constitutions.  As  has  been  shown,  all  the  colonies  were  familiar 
with  the  principles  of  appeal  to  the  king  in  council,  'which 
involved  a  judicial  review  of  colonial  legislation  and  the  possi- 
bility of  annulment.  None  of  these  first  state  constitutions  gave 
the  courts  any  power  to  declare  an  act  of  the  legislature  unconsti- 
tutional, although  in  Massachusetts  the  legislature  might  consult 

1  Maryland  was  an  exception  and  amended  her  constitution  by  an  act  of  the 
assembly,  but  the  constitution  of  1851  was  framed  by  a  convention. 


CONSTITUTIONAL  BACKGROUND  17 

the  judges.  Nevertheless  the  judges  early  claimed  the  power 
of  upholding  the  constitution  in  a  case  of  conflict  between  an 
act  of  the  legislature  and  a  constitutional  provision.  The  earliest 
cases,  although  not  fully  reported,  arose  in  Virginia  in  1778 
and  in  New  Jersey  in  1779 ;  in  both  instances  the  courts  upheld 
the  constitution  in  opposition  to  the  legislature.  Again,  in  1782, 
in  the  case  of  Commonwealth  v.  Caton  et  al.,  Chancellor  Wythe 
in  these  rather  grandiloquent  words  maintained  the  principle, 
"  ...  if  the  whole  legislature,  an  event  to  be  deprecated,  should 
attempt  to  overleap  the  bounds  prescribed  to  them  by  the  people, 
I,  administering  the  public  justice  of  the  country,  will  meet  the 
united  powers  at  my  seat  in  this  tribunal ;  and  pointing  to  the 
Constitution,  will  say  to  them  here  is  the  limit  of  your  authority, 
and  hither  you  shall  go,  but  no  further." 1  The  most  famous 
case,  however,  was  Trevett  v.  Weeden,  where  in  1786  the  court 
of  Rhode  Island  refused  to  enforce  a  statute  on  the  ground  that 
it  was  "  unconstitutional  and  void."  2  Thus,  under  the  revolution- 
ary constitutions  and  at  the  outset  of  their  independent  consti- 
tutional experience  the  state  legislatures,  although  the  executive 
veto  had  been  abolished,  were  forced  to  submit  to  a  judicial 
review  of  their  acts  and  a  judicial  annulment.  This  power  of 
the  courts,  more  clearly  than  any  constitutional  provision,  tended 
to  keep  alive  the  principles  that  the  sovereignty  rested  with  the 
people  and  that  the  constitutions  defined  and  limited  the  powers 
of  the  legislature. 

1 J.  B.  Thayer,  Cases  in  Constitutional  Law,  Vol.  I,  p.  55. 
2  Ibid.  p.  73. 


Colonial 
congresses 


The  Stamp 
Act  Congress 


CHAPTER  II 

THE  EVOLUTION  OF  THE  CONSTITUTION 
THE  CONTINENTAL  CONGRESS 

Although  the  various  state  constitutions  became  the  first  legal 
governments  in  America,  the  beginnings  of  a  national  govern- 
ment existed  before  the  overthrow  of  royal  authority.  Indeed, 
as  has  been  shown,  it  was  the  recommendations  of  the  Conti- 
nental Congress  which  directed  the  various  states  to  form  their 
own  system  of  government  independently  of  Great  Britain. 
From  this  point  of  view  it  may  be  possible  to  speak  of  the  state 
governments  as  creatures  of  the  national  government.  Yet  it 
may  be  questioned  whether  at  that,  time  either  the  states  or  the 
people  at  large  would  have  admitted  the  existence  of  a  central 
government  possessing  the  characteristics  of  a  sovereign  body. 
An  examination  of  the  origin,  purposes,  and  difficulties  of 
Congress  from  1774  to  1781  will  do  much  to  substantiate  this 
point  of  view. 

Prior  to  the  revolutionary  period  the  colonies  had  become 
familiar  with  intercolonial  meetings  at  which  the  interests  of 
all  were  discussed.  These  assemblies,  or  congresses  as  they 
were  called,  were  extra-legal  bodies  summoned  usually  by  the 
royal  authorities.  They  possessed  no  legal  powers  and  were 
conferences  for  discussion  rather  than  legislative  assemblies  for 
action.  At  the  beginning  of  the  revolutionary  period,  in  1765, 
in  response  to  the  circular  letter  of  the  Massachusetts  House  of 
Representatives,  a  congress  of  nine  colonies  assembled  in  New 
York,  known  as  the  Stamp  Act  Congress.  This  was  the  first 
general  assembly  of  the  colonies  called  upon  the  sole  initiative 
of  the  colonists  themselves.  Like  the  previous  congresses  it  had 
no  legal  powers,  but  confined  itself  to  drawing  up  a  series  of 
resolutions  defining  the  rights  of  the  colonists  from  their  point 
of  view.  Although  without  legal  power  it  pointed  the  way  to 

18 


THE  EVOLUTION  OF  THE  CONSTITUTION          19 

combined  resistance  and  was  thus  recognized  by  the  English 
authorities  as  a  precedent  of  "  dangerous  tendency,"  while  its 
success  led  the  colonists  to  repeat  the  experiment. 

The  First  Continental  Congress  assembled  in  Philadelphia  in  The  First 
September,  1774,  upon  the  almost  simultaneous  call  of  Virginia  SlSS?*1 
and  Massachusetts.     At  its  first  meeting  it  consisted  of  forty  thecreature 
delegates  from  eleven  colonies,  variously  chosen  and  variously  nies  to  obtain 
instructed.     This  much  they  all  had  in  common  —  they  were  ofcoSniaT 
chosen  by  different  bodies  within  the-  colonies  to  represent  the  nghts 
colonies  as  units,  and  they  were  instructed  to  strive  by  "legal 
measures  "  to  obtain  the  repeal  of  the  obnoxious  acts  of  Parlia- 
ment and  a  restoration  of  harmony  between  the  colonies  and 
the  mother  country.    At  the  very  outset  the  question  of  repre- 
sentation brought  out  very  clearly  the  sharp  distinction  between 
the  colonies  individually  and  a  united  America.     Patrick  Henry 
might  argue  that  "  Government  is  dissolved.  ...  I  am  not  a 
Virginian,  but  an  American.  ...  All  America  is  thrown  into  one 
mass,"  but  the  facts  were  otherwise.     Congress  was  a  creature 
of  the  various  colonies,  seeking  a  restoration  of  what  they  con- 
sidered their  colonial^  rights,  rather  than  the  representative  of 
the  people  of  a  single  nation  in  a  state  of  nature  seeking  to 
establish  a  new  system  of  government.    Whether  lack  of  informa- 
tion to  determine  the  proper  basis  of  representation,  or  whether 
colonial  jealousy  influenced  the  delegates,  it  is  certain  that  the 
First  Continental  Congress  did  not  consider  itself  the  assembly 
of  a  sovereign  government,  but  an  extra-legal  assembly  of  dele- 
gates from  definite  political  units  striving  as  colonies  of  Great* 
Britain  to.  formulate  and  obtain  certain  rights. 

Its  acts,  moreover,  substantiate  this  point  of  view.    In  neither  Acts  of  the 
the  Declaration  of  Rights  nor  the  Association  did  Congress  do  unentain" 
more  than  state  the  facts  and   theories   as  it  saw  them,   and  £j°  those  of 
recommend  to  the  colonies  certain  lines  of  action.     It  is  true 


that  in  the  statement  of  colonial  rights  were  included  not  only 
those  wrrtch  the  colonies  might  properly  claim,  as  subjects  of  the 
British  system,  but  also  certain  political  theories  which,  however 
widely  held,  had  not  the  sanction  of  law.  The  recommendation 
to  establish  a  boycott  on  British  goods,  while  not  absolutely 
illegal,  was  certainly  a  measure  which  pointed  towards  resistance 


20   THE  GOVERNMENT  OF  THE  UNITED  STATES 

by  means  other  than  argument.  To  this  extent  the  First  Con- 
tinental Congress  might  be  said  to  be  a  revolutionary  body.  It 
acted,  however,  not  independently  but  through  the  colonies. 
It  gave  advice  and  counsel  but  lacked  the  sanction  of  legal 
authority  and  power. 

Different  conditions  confronted  the  Second  Continental  Con- 
gress. It  was  summoned  in  pursuance  of  a  resolution  of  the 
revolutionary  congress  of  1 7 74,  and  its  members  were  as  irregularly  chosen 
as  the  members  of  the  First  Congress  had  been,  but  between  the 
choice  of  delegates  and  the  assembling  of  the  Congress  the  appeal 
to  arms  had  been  made.  It  was  useless  to  talk  of  resistance  by 
legal  means  when  General  Gage  was  blockaded  in  Boston  by  the 
colonial  militia.  Moreover,  whatever  the  relations  of  Congress 
to  the  colonies  might  be,  Congress  made  the  war  in  Massachu- 
setts its  own.  The  course  of  events  rather  than  the  development 
of  theory  made  the  Second  Continental  Congress  the  central 
body  of  the  many  revolutionary  governments  which  sprang  up 
throughout  the  colonies. 

The  appeal  of  Massachusetts  was  answered  by  the  choice  of 
General  Washington  as  commander  in  chief,  and  Congress  as- 
sumed the  power  of  a  de  facto  government,  organized  for  the 
purpose  of  defense  and  revolution.  As  a  revolutionary  body  it 
finally  adopted  the  Declaration  of  Independence,  but  by  this  act 
no  new  government  was  created ;  Congress  was  still  an  assembly 
of  delegates  from  independent  states.  Its  only  power  lay  in  the 
acquiescence  of  these  states  in  its  acts.  It  is  true  that  it  assumed 
the  functions  of  a  sovereign  government,  conducted  the  war  on 
sea  and  land,  borrowed  and  issued  money,  made  treaties,  and, 
in  theory  at  least,  possessed  all  the  powers  necessary  to  accom- 
plish that  f6r  which  it  had  been  formed  —  the  achievement  of 
independence.  Practically  it  did  little  more  than  to  represent  the 
states  and  was  forced  to  modify  its  policy  to  suit  their  prejudices. 
Its  weakness  lay  in  its  very  origin.  It  was  an  irregular  revolu- 
tionary government,  existing  without  the  formal  acceptance  of 
the  people.  Its  strength  lay  in  the  necessities  of  the  war,  the 
enthusiasm  of  the  revolutionists,  and  the  skill  of  leaders. 


THE  EVOLUTION  OF  THE  CONSTITUTION          21 

THE  ARTICLES  OF  CONFEDERATION 

Almost  a  year  before  the  Declaration  of  Independence  was  origin  and 
issued,  Franklin  had  prepared  a  plan  for  the  closer  union  of  the 
colonies,  and  during  the  year  1775-1776  John  Adams  had  urged 
the  formation  of  a  confederation  of  the  states.  On  June  7,  1776, 
it  was  resolved  to  appoint  a  committee  to  prepare  a  form  of  con- 
federation. A  plan  drawn  up  by  John  Dickinson  was  presented 
on  July  12  and  debated  at  intervals  until  November  15,  1777, 
when,  with  some  amendments,  it  was  finally  adopted  and  sub- 
mitted to  the  states  on  July  17,  1778.  Eleven  of  the  states 
ratified  the  plan  in  about  a  year,  but  Delaware  delayed  until 
1779,  and  Maryland  until  1781.  Consequently  the  new  govern-  ' 
ment  did  not  come  into  operation  until  March  2,  1781,  nearly 
five  years  after  independence  had  been  declared  and  only  two 
years  before  it  was  achieved.1 

The  system  established  by  the  Articles  of  Confederation  pro-  Th«  con- 
vided  not  for  a  national  government  but  for  a  "  league  of  friend-  league*101 
ship  "  of  politically  independent  states.    Each  state  was  to  retain 
"  its  sovereignty,  freedom,  and  independence  and  every  power, 
jurisdiction,  and  right,"  not  "  expressly  delegated  to  the  United 
States   in   Congress   assembled."     The   states  were   politically 
sovereign  over  their  citizens,  although  for  purposes  of  defense 
they  delegated  certain  powers  to  Congress  and  although  they 
had  denied  themselves  the  use  of  certain  other  powers ;   and 
this  confederate  government  operated  not  through  and  upon  the 
people  but  upon  and  through  the  several  states.    There  were  it  is  opera- 
no  people  of  the  United  States,  but  merely  citizens  of  the  several  citizens  but" 
states  subject  not  to  Congress  but  to  various  state  governments.  upon  states 
Freedom  of  migration,  intercourse,  and  commerce,  extradition  of 
fugitives  from  justice,  and  a  mutual  regard  for  the  acts,  records, 
and  judicial  proceedings  of  every  state  comprised  almost  all  the 
rights  and  privileges  granted  by  the  Articles  to  the  citizens  of 
all  the  states.    It  was  a  league  of  sovereign  independent  states 
rather  than  a  single  unified  government  which  was  established 
in  1781. 

1  For  official  text  of  the  Articles  of  Confederation  and  the  final  acts  of  ratifi- 
cation see  Journals  of  the  Continental  Congress,  Vol.  XIX,  pp.  214-223. 


22      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  Congress 
of  the  Con- 
federation 
gave  each 
state  equal 
representa- 
tion 


The  execu- 
tive power 
in  Congress 


The  nine 
states  rule 


The  government  established  by  these  Articles  was  painfully 
simple.  It  consisted  of  an  annual  congress  composed  of  not 
more  than  seven  nor  less  than  two  delegates  from  each  state 
chosen  for  not  more  than  three  years  out  of  six,  "  with  the 
power  reserved  to  each  state  to  recall  its  delegates  or  any  of 
them,  at  any  time  .  .  .  and  to  send  others  ..."  Each  state  was 
to  support  its  own  delegates,  and  in  voting  each  state  was  to 
have  but  a  single  vote  cast  in  accord  with  the  decision  of  the 
majority  of  the  delegation.  Thus  the  principle  of  equality  of 
representation  which  was  discussed  at  the  first  meeting  of  the 
First  Continental  Congress  was  perpetuated  in  the  formal  con- 
stitution, and  despite  the  objections  of  the  nationalist  element, 
state  prejudices  and  jealousies  were  satisfied. 

For  convenience  and  the  necessary  dispatch  of  business  Con- 
gress could  choose  one  of  the  delegates  president,  but  he  was 
in  no  sense  an  executive  officer,  merely  a  parliamentary  chair- 
man. All  the  executive  power  was  in  Congress  itself  or  in  the 
committees  created  by  it.  Furthermore,  the  executive  power 
could  not  be  exercised  upon  important  questions  without  the 
assent  of  nine  out  of  thirteen  state  delegations,  any  or  all  of 
whom  might  be  made  quickly  responsive  to  state  sentiment 
through  the  power  of  recall.  Congress  had  no  legislative  power  in 
the  sense  that  it  could  enforce  its  own  acts.  It  might  pass  reso- 
lutions, make  requisitions,  but  the  power  of  enforcement  lay 
with  the  states.  Congressional  resolution  lacked  the  sanction 
of  law.  A  quasi-judicial  power  was  given  to  Congress  in  that 
it  might  nominate  a  list  from  which  commissioners  should  be 
chosen  by  lot  to  hear  and  determine  disputes  between  two  or 
more  states.  But  the  judgment  of  this  "  court "  although  de- 
clared to  be  final  and  binding  was  more  like  the  award  of  a 
board  of  arbitration  and  could  be  enforced  against  an  unwilling 
party  only  by  arms. 

Congress  was  thus  the  national  executive,  yet  deprived  of  all 
original,  independent  executive  power ;  the  national  legislature, 
yet  its  acts  were  not  laws ;  the  national  judiciary,  whose  decrees 
had  only  a  moral  force.  In  itself  it  combined  all  national  execu- 
tive, legislative,  and  judicial  functions,  but  lacked  the  vital  strength 
to  perform  any  of  these.  It  was  what  it  purported  to  be  —  an 


THE  EVOLUTION  OF  THE  CONSTITUTION          23 

excellent  instrument  for  a  confederation,  called  into  being  at  a 
time  when  a  strong  national  government  was  needed. 

The  excellences  of  the  scheme  as  a  federation  can  be  seen  Distribution 
from  the  wise  and  careful  distribution  of  powers  between  Con-  Ofpower8: 
gress  and  the  states.    Almost  every  power  of  purely  general  or  (i)  Powers 
national  nature  was  given  to  Congress.    Among  other  things  it  congress10 
could  declare  and  wage  war  on  land  and  sea,  control  all  diplo- 
matic  matters  and   make  treaties,  make  requisitions  upon  the 
states  for  men  and  money,  borrow  money,  emit  bills  of  credit, 
determine  the  weight  and  fineness  of  coin  and  establish  weights    , 
and  measures,  and  establish  and  regulate  the  post  office.   Two 
important   functions   were    denied    to    Congress  —  it    had    no  (2)  Powers 
power  to  regulate  commerce  nor  could  it  raise  money  by  taxa-  congress 
tion.    Congress  was   expressly  forbidden  to  make  commercial 
treaties  "  whereby  the  legislative  power  of  the  respective  states 
shall  be  restrained  from  imposing  such  imposts  and  duties  on 
foreigners,  as  their  own  people  are  subjected  to,  or  from  pro- 
hibiting the  exportation  or  importation  of  any  species  of  goods 
or  commodities."    It  could  make  requisitions  for  money,   but 
"  the  taxes  .  .  .  shall  be  laid  and  levied  by  the  authority  of  the 
legislatures  of  the  several  states."    Aside  from  these  two  impor- 
tant omissions  there  was  almost  an  ideal  division  of  functions  — 
those  of  a  general  nature,  affecting  all,  were  granted  to  Con- 
gress'; those  of  local  nature  were  reserved  to  the  states.    Con- 
gress had  duties  and  proper  powers  which  concerned  the  whole 
country ;  the  states  were  concerned  with  their  own  citizens. 

Two  principles,  however,  prevented  the  proper  execution  of  weaknesses 
these  powers.   As  has  been  pointed  out,  Congress  could  operate  confederation: 
only  through  the  states.    In  the  second  place,  in  all  important  (i)  operated 

J    .  .  only  through 

questions  connected  with  the  above  powers  it  was  necessary  to  states 
obtain  the  assent  of  nine  of  the  states,  thus  giving  to  a  small  (a)  The  nine 

i      •      1.1.      states  rule 

minority  the  power  to  block  measures  necessary  not  only  in  the 
civil  affairs  but  in  the  crises  of  the  war.  The  Articles,  moreover, 
could  not  be  amended  or  altered  unless  Congress  should  agree  and 
the  ratification  of  every  one  of  the  thirteen  state  legislatures  be 
obtained.  It  was  this  practical  impossibility  of  amendment,  as  (3)  Amend- 

.  j  ments  must 

much  as  any  inherent  defect  in  the  Articles,  which  made  progress  be  unanimous 
impossible  and  which  led  to  the  formation  of  a  new  constitution. 


24      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Criticism  of 
statesmen 


Causes  of 
failure 


Necessity  of 
economic  re- 
construction 
after  the 
Revolution 


THE  FAILURE  OF  THE  ARTICLES  OF  CONFEDERATION 

Even  before  the  Articles  of  Confederation  were  adopted  the 
plan  was  subjected  to  severe  criticism  by  many  of  the  more 
farsighted  statesmen.  The  experience  of  the  war  had  shown 
Washington  the  danger  of  a  federal  assembly  without  an 
executive,  whether  that  assembly  be  the  Continental  Congress 
or  a  body  organized  under  more  formal  authorization.  The 
financial  difficulties  had  convinced  Robert  Morris  of  the 
necessity  of  giving  to  the  central  government  some  more  secure 
revenue  than  that  which  depended  upon  the  requisitions  from 
the  states,  while  the  shortsighted  selfishness  of  the  states 
disgusted  Hamilton  and  led  him  to  urge  the  idea  of  a  strong 
national  government. 

The  failure  of  the  Articles  of  Confederation  arose  from  three 
different  sources:  (i)  the  readjustments  made  necessary  by 
independence  and  the  prevalence  of  revolutionary  theories,  (2) 
the  violations  of  the  fundamental  provisions  of  the  Articles,'  and 
(3)  certain  grave  defects  in  the  scheme  of  government  itself 
which  became  obvious  in  actual  practice. 

With  the  coming  of  peace,  in  1783,  freedom  from  war 
relieved  the  states  from  the  more  obvious  necessity  of  submis- 
sion to  Congress.  But  peace  did  not  bring  prosperity.  The 
high  prices  which  prevailed  during  the  war  fell.  The  commis- 
sary of  the  British  forces  ceased  to  be  a  cash  customer  for  the 
produce  of  the  farmer,  and  all  agricultural  products  declined  in 
price.  The  profitable  though  precarious  speculations  in  privateers 
stopped  when  it  became  unlawful  to  capture  British  merchant- 
men. The  newly  established  manufactories,  which  had  expanded 
with  the  high  prices  caused  by  the  practical  monopoly  of  the 
domestic  market,  now  withered  under  the  competition  of  im- 
mense British  importations.  American  trade  followed  its  natural 
channel  to  England  rather  than  the  artificial  one  created  by  the 
French  treaty.  The  disbanding  of  the  army  brought  back  to 
their  homes  thousands  of  men  for  whom  employment  must  be 
found,  and  in  the  face  of  hard  times  such  a  problem  was 
doubly  difficult.  The  years  between  1783  and  1787  were  years 
of  hardship,  a  period  when  the  economic  relations  of  states 


THE  EVOLUTION  OF  THE  CONSTITUTION          25 

were  in  the  process  of  readjustment;  but  by  1787  trade  rela- 
tions were  beginning  to  be  reestablished,  and  by  1789  the 
country  had  returned  to  its  normal  prosperity  and  was  expand- 
ing in  new  directions.  It  is  a  mistake  to  believe  that  the  four 
years  of  depression  were  characteristic  of  either  the  period  of 
the  Revolution  or  the  whole  of  the  "  Critical  Period."  While  the 
depression  was  not  due  to  the  form  of  government,  it  made 
the  task  of  government  difficult  and  showed  the  weakness  of 
the  Confederation  in  dealing  with  such  a  crisis.1 

In  another  way  the  period  of  the  Confederation  was  a  period  Necessity  for 
of  experimentation  and  readjustment.  As  has  been  shown,  the  adjustment 
colonists  were  not  democratic,  but  the  necessity  of  justifying 
and  making  popular  the  Revolution  had  spread  the  doctrine 
of  equality  and  natural  rights.  A  great  deal  had  been  written 
about  tyrants,  and  government  and  tyranny  were  frequently  con- 
founded. The  overthrow  of  the  settled  colonial  governments 
had  not  been  accomplished  without  a  price,  and  there  was 
everywhere  a  relaxing  of  restraints  and  a  lowering  of  standards 
which  the  more  conservative  viewed  with  alarm.  It  is  true 
that  the  legal  qualifications  for  the  suffrage  under  the  new 
state  constitutions  were  not  unlike  those  under  the  colonial 
charters,  but  respect  for  duly  constituted  authority  had  diminished, 
and  if  the  unfranchised  did  not  actually  possess  the  suffrage, 
they  increased  in  influence  and  began  to  demand  either  a  share 
in  the  government  or  legislation  in  the  interest  of  their  class. 
The  governing  class,  that  is,  the  well  to  do,  might  legally  thwart 
their  wishes,  but,  however  wisely  refusal  was  made  to  the  crude 
demands  of  the  debtor  class,  it  was  fraught  with  danger.  The 
armed  uprising  of  Daniel  Shays  in  Massachusetts  and  the  im- 
minence of  anarchy  in  that  state  proved  alike  the  risk  to  govern- 
ment by  a  minority  and  the  need  of  some  central  government 
strong  enough  to  assist  the  state  authorities  in  preserving  peace. 

These    ideas   of    revolutionary   freedom   and    natural    rights  Habit  of 
were  invoked  not  merely  against  the  state  governments  but  by  government 
the  states  against   Congress.    The  colonies  had  asserted  their 
"  natural  rights  "  to  resist  the  authority  of  the  British  Empire ; 

1  For  an  excellent  treatment  see  Edward  Channing,  History  of  the  United 
States,  Vol.  IV,  chap,  xiii,  "  Economic  Readjustments." 


26      THE  GOVERNMENT  OF  THE  UNITED  STATES 


were  they  now  to  surrender  these  rights  to  an  American  govern- 
ment ?  They  had  not  shared  in  the  government  of  Great 
Britain,  and  the  Revolution  had  emphasized  the  antithesis 
between  their  rights  and  the  powers  of  the  British  government, 
but  they  had  not  yet  learned  that  with  their  independence  and 
popular  institutions  "  there  could  be  no  antithesis  between 
government  and  people,  inasmuch  as  the  people  were  the 
government,  the  possessors  of  the  ftnal  political  authority ; 
what  was  called  government  was  merely  the  servant  of  a  power 
superior  to  itself."  l  The  states  now  used  their  independence 
to  thwart  their  own  instrument,  Congress,  which  had  won  their 
state  rights  independence  for  them.  "  Natural  rights,"  as  interpreted  by 
some  of  the  states,  meant  state  sovereignty  in  its  most  self- 
assertive  form.  Thus  Rhode  Island  refused  to  ratify  a  congres- 
sional resolution  laying  a  5  per  cent  duty  upon  certain  goods 
because  she  "regarded  it  the  most  precious  jewel  of  sovereignty 
that  no  state  shall  be  called  upon  to  open  its  purse  but  by  the 
authority  of  the  state  and  by  her  own  officers."  Some  states 
neglected  their  legal  obligations  and  congressional  requisitions 
were  unpaid,  while  other  states  refused  to  allow  amendments 
to  the  Articles  lest  their  so-called  sovereignty  might  be  impaired. 
In  a  paper  prepared  in  1787  Madison  criticized  most  dis- 
criminatingly both  the  actions  of  the  states  and  the  framework 
of  the  government.2  He  found  that  the  states  had  violated  the 
compact  in  several  fundamental  and  basic  particulars.  The  states 
had  failed  to  comply  with  the  requisitions  made  by  Congress. 
It  will  be  remembered  that  Congress  by  the  vote  of  nine  states 
could  call  for  money,  but  that  the  states,  not  Congress,  had  the 
sole  right  to  lay  taxes  to  meet  these  requisitions.  The  necessities 
of  the  states  to  raise  and  pay  their  own  militia  and  to  con- 
tribute only  a  part  of  the  men  Congress  called  upon  them  to 
furnish  made  them  unwilling  to  assume  further  burdens.  More- 
over, after  peace  every  state  found  itself  struggling  with  what 
seemed  to  it  an  overwhelming  debt,  and  many  of  the  states 

1  A.  C.  McLaughlin,  The  Confederation  and  the  Constitution,  p.  41.   This 
volume  contains  the  best  brief  account  of  the  problems  of  the  period  and 
the  framing  of  the  Constitution  written  from  the  point  of  view  of  a  strong 
nationalist. 

2  Writings  of  James  Madison  (Hunt's  edition),  Vol.  II,  p.  361. 


Madison's 
criticism  of 
the  Articles: 


(i)  Failure  to 
comply  with 
requisitions 
by  Congress 


THE  EVOLUTION  OF  THE  CONSTITUTION          27 


had  difficulties  in  raising  enough  money  for  their  own  legitimate 

and  necessary  expenses.    Consequently  they  neglected,  if  they 

did  not  refuse,  to  comply  with  the  legal  demands  of  Congress. 

The  effect  was  twofold.    In  the  first  place,  such  a  violation  of 

one  of  the  fundamental  principles  of  the  Confederation  weak-  [weakness  of 

ened  the  whole  structure.   This  Madison  considered  "  as  not  less 


radically  and  permanently  inherent  in,  than  it  is  fatal  to,  the  a°d  practical 
object  of  the  present  system."    In  the  second  place,  failure  to 
comply   with    these   requisitions   brought    practical    bankruptcy 
to    Congress. 

The  war  had  been  financed  by  four  methods  :  (i)  requisitions,  [Methods  of 
(2)  loans  from  European  powers  who  from  not  wholly  disinter- 
ested  motives  supported  the  revolt  of  the  colonies  against  Eng- 
land, (3)  loans  from  citizens,  (4)  paper  money.  During  the  war 
the  requisitions  produced  very  little  revenue,  and  even  this  was 
paid  in  depreciated  paper  which  the  states  ha'd  issued,  following 
the  example  of  Congress.  In  the  first  four  years  of  the  Confed- 
eration, Congress  received  less  than  one  quarter  of  the  amount 
it  had  called  for,  and'  in  the  last  year  before  the  adoption  of 
the  new  constitution  only  about  $500,000  was  contributed  by  the 
states.  This  slight  revenue  failed  to  meet  the  necessities  of  the 
government  and  compelled  it  to  go  still  further  in  debt.  New 
debts  were  contracted  and,  most  ominous  of  all,  the  interest  on 
both  the  domestic  and  foreign  loans  fell  into  arrears.  Between  [public  debts] 
1784  and  1789  the  arrears  of  interest  upon  the  domestic  debt 
increased  nearly  fourfold  and  on  the  foreign  debt  about  twenty- 
five-fold.  So  desperate  was  the  situation  that  at  one  time  the 
superintendent  of  finance,  Morris,  was  obliged  -to  draw  upon  a 
loan  he  hoped  to  obtain.  Had  not  the  Dutch  given  constant 
assistance,  and  lent  over  two  millions  to  Congress,  bankruptcy 
must  have  ensued. 

The  fourth  and  most  fatal  method  of  financing  the  Revolution  [Papermoney] 
was  to  print  money.  This,  by  a  resolution  of  Congress,  became 
a  debt  binding  upon  all  the  states  who  were  pledged  to  redeem 
it.  This  paper  money  began  to  depreciate  at  once.  By  1777  a 
depreciation  of  33^  per  cent  was  recognized  by  law  in  Pennsyl- 
vania. As  a  result  prices  had  increased  alarmingly,  because  the 
merchants  tried  to  exact  in  quantity  what  the  paper  medium 


28      THE  GOVERNMENT  OF  THE  UNITED  STATES 

* 

lacked  in  value,  while  the  "  debtors  pursued  their  creditors  in 
triumph,  paying  them  without  mercy."  1  Laws  were  passed  to 
regulate  prices,  but  the  distrust  of  the  people  was  more  potent 
than  legislation.  The  decline  continued,  and  by  1780  Congress 
confessed  bankruptcy  and  passed  an  act  promising  to  redeem 
this  currency  at  one  fortieth  of  its  face  value.  This  only  has- 
tened the  depreciation,  and  prices  in  this  medium  became  absurd.2 
By  1781  paper  money  ceased  to  circulate  and  was  bought  and 
sold  only  for  speculative  purposes  at  rates  varying  from  five 
hundred  to  one  thousand  dollars  for  one  dollar  in  gold.  From 
almost  every  point  of  view  paper  money  had  proved  a  curse. 
[why  con-  It  is  easy  to-day  to  assert  that  Congress  should  have  adopted 
paper  money]  other  means.  It  must  be  remembered  that  the  plan  for  paper 
money  was  adopted  by  the  Second  Continental  Congress,  which 
was  simply  a  revolutionary  body,  depending  for  its  support  upon 
the  tacit  acquiescence  of  the  states,  and  had  neither  formal  sanc- 
tion nor  coercive  power  for  its  action.  Not  to  do  the  best,  but 
to  do  what  it  could,  was  the  aim  of  Congress.  Moreover,  in 
1776,  the  ablest  men  in  America  sat  in  Congress,  shrewd  poli- 
ticians who  perhaps  were  sound  judges  of  the  situation,  and, 
seeing  the  impossibility  of  taxation,  they  adopted,  what  many  felt 
the  poorer  but  only  practical  means  to  meet  the  crisis. 
(3)  Alliances  Madison  held  that  the  states  had  violated  the  Articles  in 
states60  another  way  by  encroaching  upon  federal  authority.  By  the 
Articles  of  Confederation  the  states  were  forbidden  to  negotiate 
treaties  and  to  make  war  except  in  defense.  Nevertheless 
Georgia  had  waged  war  against  the  Indians  and  had  made 
treaties  with  them  —  a  double  violation  since  Congress  was  given 
charge  of  all  relations  with  the  Indians.  Virginia  and  Maryland 
and  Pennsylvania  and  New  Jersey  had  made  treaties  to  regulate 
the  navigation  of  the  Potomac  and  the  Delaware  Rivers  in  spite 
of  the  provision  that  "  No  two  or  more  states  shall  enter  into  any 
treaty,  confederation  or  alliance,  whatever  between  them,  without 
the  consent  of  the  United  States  in  Congress  assembled.  ..." 

1  Quoted  by  C.  H.  Van  Tyne,  in  "  The  American  Revolution,"  p.  241. 

2  Thus  tea  was  sold  for  from  ninety  to  one  hundred  dollars  a  pound  ;  Samuel 
Adams,  always  impecunious,  bought  a  suit  and  hat  for  which  he  was  forced  to 
pay  one  thousand  dollars ;  and  Jefferson  paid  his  physician  three  thousand  dol- 
lars for  two  visits.  —  C.  A.  Beard,  American  Government  and  Politics,  p.  39 


THE  EVOLUTION  OF  THE  CONSTITUTION          29 

It  must  be  confessed  that  these  violations  were  caused  by  the 
fact  that  Congress  had  no  power  to  regulate  or  control  navi- 
gation or  commerce,  and  the  necessities  of  the  states  may 
be  pleaded.  Nevertheless  such  unreproved  violations  disclosed 
the  weakness  of  the  Confederation  in  dealing  with  important 
problems  and  tended  to  weaken  its  authority  in  other  matters.  <3)  violations 

Congress  could  negotiate  treaties,  and  the  states  were  forbid- 
den  to  lay  "duties  which  might  interfere  with  such  treaties." 
The  states  were,  however,  allowed  to  exact  from  foreigners 
the  same  duties  as  their  own  citizens  were  asked  to  pay,  and 
Congress  was  expressly  forbidden  to  make  treaties  depriving  the 
states  of  this  power.  As  a  result  of  these  contradictory  pro- 
visions the  whole  foreign  and  commercial  policy  of  the  United 
States  was  at  the  mercy  of  the  individual  states.  Violations  of 
treaty  obligations  were  numerous ;  Madison  asserted  that  "  not 
a  year  has  passed  without  instances  of  them  in  some  one  or 
another  of  the  states."  So  far  foreign  nations  had  shown  mod- 
eration towards  America,  but,  as  John  Adams  found  in  England, 
it  was  impossible  to  negotiate  a  commercial  treaty.  Congress  could 
lay  no  restrictions  upon  the  states,  and  the  states  could  render  void 
any  advantage  which  Congress  had  granted.  Since  Congress  had 
nothing  it  could  withhold,  it  had  nothing  it  could  give  away. 

The  states  themselves  attempted  to  solve  the  commercial  dif-  (4)  commer- 
ficulties,  but  by  selfish  competition  rather  than  by  cooperation,  tion  between 
When  the  other  New  England  states  closed  their  ports  to  Great  8 
Britain,  hoping  to  extort  some  favorable  commercial  relaxations, 
Connecticut  opened  her  ports  to  British  importations.  The  states 
also  competed  for  domestic  commerce.  New  York  burdened  the 
trade  from  Connecticut  and  New  Jersey,  both  of  which  retaliated. 
Pennsylvania  discriminated  against  Delaware  and  New  Jersey, 
while  Maryland  tried  to  limit  the  commerce  of  Virginia.  The 
clause  providing  that  the  people  of  each  state  "  shall  enjoy  herein 
all  the  privileges  of  trade  and  commerce  "  was  a  dead  letter.  It 
is  true  that  in  1785  ten  states  passed  acts  granting  the  power  of 
regulating  commerce  to  Congress  for  the  next  thirteen  years, 
but  so  numerous  and  contradictory  were  the  restrictions  contained 
in  them  that  Congress  was  forced  to  refer  them  back  to  the 
states  for  revision. 


30      THE  GOVERNMENT  OF  THE  UNITED  STATES 


(5)  State 
issues  of 
paper  money 


(6)  The  Con- 
federation 
lacked  the 
power  of 
coercion 


In  another  way  the  states  had  violated  the  spirit  if  not  the 
letter  of  the  Articles  by  the  issue  of  paper  money.  By  making 
bills  legal  tender  they  had  violated  the  rights  of  the  citizens  of 
other  states  who  were  creditors.  Not  only  were  laws  passed 
making  these  notes  legal  tender  but  it  was  attempted  to  compel 
the  owners  of  goods  and  creditors  to  receive  them  under  pen- 
alties of  law.  It  has  already  been  pointed  out  how  the  judiciary 
of  Rhode  Island  refused  to  apply  the  forcing  act,  holding  that 
it  was  unconstitutional  and  hence  void.  Moreover  the  states  were 
forbidden  to  "  coin  money  or  regulate  the  value  thereof,"  and 
although  paper  bills  were  not  money  the  legal  tender  laws  of  the 
various  states  attempted  to  give  them  the  character  of  money 
and  fixed  their  value.  As  Madison  pointed  out,  the  exclusive 
regulation  of  the  value  of  money  was  properly  delegated  to  the 
federal  authority. 

These  numerous  and  serious  violations  by  the  states,  and  the 
powerlessness  of  Congress  to  check  them,  disclosed  the  vital 
defect  of  the  Confederation  —  it  had  no  power. 

Want  of  sanction  to  its  laws  and  lack  of  coercion  was 
Madison's  criticism. 

A  sanction  is  as  essential  to  the  idea  of  law  as  coercion  is  to  that  of 
government.  The  federal  system,  being  destitute  of  both,  wants  the 
great  vital  principles  of  a  political  constitution.  Under,  the  form  of 
such  a  constitution  it  is,  in  fact,  nothing  more  than  a  treaty  of  amity, 
of  commerce,  and  of  alliance  between  independent  and  sovereign  states. 

It  was  this  lack  of  coercive  authority  which  compelled  the  Con- 
gress to  sit  helpless  in  the  face  of  the  violations  by  the  states 
[social  unrest  and  the  other  evils  which  followed.  The  states  themselves  were 
in  danger  of  domestic  violence,  as  Shays's  rebellion  showed,  and 
Congress  was  helpless  to  guarantee  them  security.  There  was 
need  for  concerted  action,  not  merely  in  foreign  affairs  but  in 
commerce  and  in  national  development,  yet  progress  could  be 
defeated  by  the  perverseness  of  particular  states  whose  concur- 
rence were  necessary.  The  obedience  of  the  states  could  not  be 
relied  upon,  and  Congress  could  not  compel  it.  Much  of  the 
legislation  of  the  states  was  superfluous,  and  laws  were  '  f  repealed 
or  suspended  before  any  trial  can  have  been  made  of  their  merits 


states  re- 


THE  EVOLUTION  OF  THE  CONSTITUTION          31 

and  even  before  a  knowledge  can  have  reached  the  remote  districts 
within  which  they  were  to  operate."  Congress  had  no  power  to  con- 
trol or  annul  this  divergent  state  legislation,  even  though  it  should 
be  contrary  to  the  Articles.  There  was  no  judicial  power  in 
Congress  like  the  state  courts,  which  might  refuse  to  execute  a 
state  law  because  it  contravened  the  Constitution ;  Congress  in 
its  judicial  capacity  could  only  hear  disputes  between  the  states. 

The  Confederation  was  weak  because  it  had  never  been  ratified  (7)  The  con- 
by  the  people.  "  In  some  states  the  Confederation  is  recognized 
by  law  and  forms  a  part  of  the  Constitution.  In  others  it  has 
received  no  other  sanction  than  that  of  legislative  authority." 
The  state  governments  had  accepted  it ;  and  since  the  state 
governments  were  sovereign  their  laws,  not  the  acts  of  Con- 
gress, were  to  be  enforced  by  the  state  courts,  and  their  govern- 
ment, not  that  of  Congress,  operated  upon  the  people.  As  has 
been  said,  the  principal  defect  of  the  Confederation  lay  not  in 
its  powers  or  in  the  lack  of  them  but  in  the  fact  that  it  was  a 
mere  confederation  struggling  to  perform  the  functions  of  a  na- 
tional government.  The  dangers  which  confronted  the  American 
nation  demanded  not  the  jealous  rivalry  of  thirteen  state  legis- 
latures but  the  cooperation  of  all  the  people.  The  basis  of  the 
government  must  rest  upon  the  people  and  it  must  address 
itself  not  to  the  states  in  their  corporate  capacity  but  to  the 
people  individually. 

ATTEMPTS  TO  AMEND  THE  CONFEDERATION 

The  experience  of  the  war  had  proved  the  necessity  of  strength-  Hamilton's 
ening  the  national  government.  Even  before  the  Articles  of  Con- 
federation  were  ratified  by  the  requisite  number  of  states  there 
was  a  movement  for  a  constitutional  revision.  In  1780  Hamilton, 
in  a  letter  to  Duane,  frankly  criticized  the  defects  of  Congress 
and  the  frame  of  government.  Lack  of  power  was  the  greatest 
weakness,  in  his  judgment.  He  proposed  that  a  general  conven- 
tion should  be  called  by  the  states  and  a  new  confederation 
planned.  This  confederation  should  give  "  Congress  complete 
sovereignty,  except  as  to  that  part  of  internal  police  which  relates 
to  the  rights  of  property  and  life  among  individuals  and  to 
raising  money  by  internal  taxes.  It  is  necessary  that  everything 


32      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Washing- 
ton's pro- 
posals, 1781 


Attempts  of 
Congress  to 
amend  the 
Articles 


belonging  to  this  should  be  regulated  by  the  State  Legislatures. 
Congress  should  have  complete  sovereignty  in  all  that  relates  to 
war,  peace,  trade,  and  finance ;  and  to  the  management  of  foreign 
affairs  ;  the  right  of  declaring  war ;  of  raising  armies,  officering, 
paying  them,  directing  their  motions  in  every  respect ;  of  equip- 
ping fleets,  and  doing  the  same  with  them ;  of  building  fortifi- 
cations, arsenals,  magazines,  etc.,  etc. ;  of  making  peace  on  such 
conditions  as  they  think  proper  ;  of  regulating  trade,  determining 
with  what  countries  it  shall  be  carried  on ;  granting  indulgences ; 
laying  prohibitions  on  all  the  articles  of  export  or  import ;  im- 
posing duties ;  granting  bounties  and  premiums  for  raising,  ex- 
porting, or  importing,  and  applying  to  their  own  use  the  product 
of  these  duties  —  only  giving  credit  to  the  States  on  whom  they 
are  raised  in  the  general  account  of  revenues  and  expenses ; 
instituting  admiralty  courts,  etc. ;  of  coining  money ;  establishing 
banks  on  such  terms  and  with  such  privileges  as  they  think 
proper ;  appropriating  funds,  and  doing  whatever  else  relates  to 
the  operations  of  finance ;  transacting  everything  with  foreign 
nations  ;  making  alliances  offensive  and  defensive,  treaties  of  com- 
merce, etc.,  etc."  1  In  the  following  year  Washington*  declared 
that  a  mere  nominal  executive  was  not  sufficient  and  that  Con- 
gress should  be  given  the  controlling  power  and  the  right  to 
regulate  all  matters  of  general  concern.  He  saw,  as  Hamilton 
and  Madison  had  seen,  that  the  great  defect  of  the  Confederation 
lay  in  its  lack  of  coercive  power,  that  the  states  could  not  be  relied 
upon,  and  that  Congress  couhfnot  compel  obedience. 

With  the  adoption  of  the  Articles  Congress  felt  its  weakness 
and  began  to  seek  methods  of  strengthening  itself.  In  1781  a 
committee  reported  an  amendment  giving  Congress  the  power 
to  use  the  force  of  the  United  States  to  compel  states  to  fulfill 
their  federal  obligations.  Six  months  later  Randolph,  from 
another  committee,  reported  that  the  Confederation  required 
execution  in  twenty-one  different  ways  and  recommended  seven 
amendments.2  These  were  not  submitted  to  the  states  as  a 
whole,  but  Congress  twice,  in  1783  and  in  1784,  proposed 
amendments  giving  it  power  to  levy  duties  upon  certain  imports. 


1  H.  C.  Lodge,  The  Works  of  Alexander  Hamilton,  Vol.  I,  pp.  224-225. 

2  August  22,  1781  ;  Journals  of  the  Continental  Congress,  Vol.  XXI,  p.  893. 


THE  EVOLUTION  OF  THE  CONSTITUTION          33 

In  both  instances  unanimous  consent  could  not  be  obtained,  and 
the  proposals  were  defeated  because  of  the  votes  of  single  states. 
In  1785  acts  were  passed  by  ten  states  giving  Congress  the 
power  of  regulating  commerce  for  thirteen  years,  but  these  were 
so  contradictory  that  nothing  could  be  accomplished.  In  1786, 
in  urging  the  acceptance  of  the  revenue  amendment  of  1783, 
Congress  declared  that  the  crisis  had  come  and  that  it  was 
impossible  to  preserve  and  maintain  the  faith  of  the  federal 
government  by  the  temporary  requisitions  of  the  states.1 

As  has  been  shown,  in  1780  Hamilton  suggested  the  plan  of  The  deveiop- 
calling  a  convention  for  the  framing  of  a  new  constitution,  and  SJ^of  * 
in  1782  the  assembly  of  New  York  recommended  such  action,  ^^con-^ 
In  1784  certain  members  of  Congress  discussed  the  advisability  vention 
of  such  a  plan,  but  no  formal  action  was  taken.  In  1785  the 
Massachusetts  General  Court  passed  a  resolution  calling  upon 
Congress  to  call  a  convention,  but  her  delegates  refused  to 
present  these  resolutions  to  Congress.  In  this  same  year,  how- 
ever, the  plan  for  a  convention  received  unexpected  assistance. 
Virginia  and  Maryland  were  attempting  to  settle  their  dispute 
concerning  the  navigation  of  the  Potomac.  All  the  states  were 
invited  to  send  delegates  to  attend  a  convention  at  Annapolis  Annapolis 
to  consider  the  question  of  duties  and  commerce  in  general.  At 
this  convention  delegates  from  only  five  states  were  present,  but 
among  them  was  Hamilton,  who  reverted  to  his  plan  for  a  re- 
vision of  the  Articles  and  succeeded  in  persuading  the  conven- 
tion to  pass  a  resolution  asking  the  states  to  send  delegates  to  a 
convention  to  be  held  at  Philadelphia  "  to  consider  the  Articles  of 
Confederation  and  propose  such  changes  therein  as  might  render 
them  adequate  to  the  exigencies  of  the  Union."  This  resolution 
was  sent  to  the  state  legislatures  and  by  them  transmitted  to 
Congress.  In  February,  1787,  Congress  assented  to  the  plan  and 
issued  a  call  for  a  convention  "  for  the  sole  and  express  purpose 
of  revising  the  Articles  of  Confederation  and  reporting  to  Con- 
gress  and  the  several  legislatures  such  alterations  and  provisions 
therein  as  shall  when  agreed  to  in  Congress  and  confirmed  by  the 
states,  render  the  federal  constitution  adequate  to  the  exigencies 
of  the  government  and  the  preservation  of  the.  Union." 

1  G.  T.  Curtis,  Constitutional  History  of  the  United  States,  Vol.  I,  p.  232. 


34      THE  GOVERNMENT  OF  THE  UNITED  STATES 

All  the  states  except  Rhode  Island  responded.  In  all,  sixty- 
two  delegates  were  appointed  in  various  ways  from  the  twelve 
states.  Most  of  these  delegations,  however,  were  strictly  bound 
by  their  instructions  to  the  consideration  of  amendments.  It 
may  well  be  doubted  whether  the  response  would  have  been  so 
general  had  it  been  imagined  that  an  entirely  new  constitution 
was  to  be  the  result  of  the  deliberations  of  the  convention. 


CHAPTER  III 
MAKING  THE  CONSTITUTION 

While  the  delegates  were  assembling  at  Philadelphia  the 
leaders  in  the  movement  for  a  new  constitution  came  to  an 
understanding  as  to  the  method  of  procedure.  The  formal 
organization  was  completed  on  Ma^_25j  and  four  days  later 
Randolph,  the  ablest  speaker  ofthe  Virginia  delegation,  pre- 
sented a  plan  prepared  by  Madison  in  the  form  of  Jifteen 
resolutions.  These  resolutions,  the  so-called  Virginia  plan, 
formed:  the  basis  of  the  deliberation  of  the  convention  and  the 
foundation  of  the  new  constitution.  They  provided  not  for 
a  mere  amendment  to  the  Articles  but  for  the  framing  of  a  new 
system  under  the  guise,  later  abandoned,  of  enlarging  the  powers 
of  Congress. 

THE  VIRGINIA  PLAN 

According  to   this  plan  there  should  be  a  single  national  (i)  single 
executive  who,  with  a  "  convenient  number  "  of  the  national  e 
judiciary,   should  exercise  a  veto  upon  the  acts  of   Congress. 
The  national  judiciary  was  to  be   established  to  try  cases  of  (a)  National 
(i)  piracies,  (2)  cases  in  which  foreigners  might  be  interested,  : 
(3).  cases  with  respect  to  the  collection  of  the  national  revenue 
or  the  national  peace  and  harmony,  (4)  cases  of  impeachment. 
Congress  was  to    consist   of  two    Houses,   proportional  to  the  (3)  congress 
quota  of  contributions  or  to  the  numbers  of  free  inhabitants  of  proportional 
the  states,  the  lower  branch  of  which  should  be  elected  by  the  population  or 
people  of  the  states  and  the  upper  house  by  the  lower  from  contributions 
those  nominated  by  the  state  legislatures.    This  body  was  to 
exercise  all  the  powers  of  Congress  under  the   Confederation 
and  also  could  legislate  in  "  all  cases  in  which  the  harmony  of   • 
the  United  States  may  be  interrupted  by  the  exercise  of  indi- 
vidual legislation  "  by  the  states.    It  also  had  power  to  negative 
the  laws  of  the  states  which  were  contrary  to  the  articles  of 

35 


36   THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  conven- 
tion decides 
on  a  new 
constitution 


Opposition  to 
proportional 
representa- 
tion 


Opposition  to 
the  Virginia 
plan: 


(i)  State 
sovereignty 


union  and  "  to  call  forth  the  force  of  the  Union  against  any 
member  of  the  Union  failing  to  fulfill  its  duty  under  the 
articles  thereof."  l 

Shortly  after  this  plan  was  presented  Randolph  offered-  three 
brief  resolutions  embodying  the  fundamentals  of  his  plan. 
These  declared  that  a  mere  federal  union  would  not  accomplish 
the  object  of  the  Confederation,  that  no  treaties  among  the 
states  as  individual  sovereignties  would  be  sufficient,  and  that 
a  national  government  ought  to  be  established  consisting  of 
a  supreme  legislature,  executive,  and  judiciary.  After  a  brief 
debate  these  were  agreed  to,  Connecticut  voting  No  and  New 
York  being  divided  on  the  third. 

The  convention  had  apparently  come  to  the  conclusion  that 
no  mere  amendment  would  be  sufficient.  The  delegates  from 
the  large  states  and  the  national  element  were  in  control  and 
had  pushed  their  .case  rapidly.  Yet,  although  the  convention 
had  overwhelmingly  decided  for  what  seemed  a  new  form  of 
government,  the  discussion  of  the  details  revealed  the  existence 
of  groups  holding  very  diverse  opinions  which  prolonged  the 
debates  and  produced  compromises  not  only  in  details  but  in 
some  of  the  more  fundamental  features. 

The  discussion  over  representation  first  revealed  the  existence 
of  these  parties  most  clearly.  Should  the  new  national  legisla- 
ture continue  the  practice  of  the  Confederation  and  recognize 
the  principle  of  state  sovereignty  by  giving  to  each  state  an 
equal  representation  ?  Or  should  wealth  or  population  or  a  com- 
bination of  both  be  considered,  and  representatives  be  apportioned 
according  to  one  or  both  of  these  standards  ?  It  was  the  old 
discussion  which  had  faced  the  First  Continental  Congress  at 
its  first  session,  and  it  clearly  revealed  the  existence  of  at  least 
three  lines  of  opposition  to  the  Virginia  plan. 

The  most  fundamental  ground  of  opposition  was  that  a 
federation,  not  a  national  government,  was  desired.  Once  admit 
the  desirability  of  a  national  and  not  a  federal  system  and  much 
of  the  opposition  to  proportional  representation  vanished.  As 
has  been  seen,  even  during  the  Revolution  the  states  were  loath 
to  surrender  their  powers  to  the  Continental  Congress,  and 

1  Elliot's  Debates,  Vol.  I,  143-145. 


MAKING  THE  CONSTITUTION  37 

after  peace  was  declared  ignored  or  refused  its  requests.  Active 
state  sovereignty  saw  no  room  for  a  strong  national  government. 
A  treaty  or  a  federation  best  satisfied  these  states.  Hence  arose 
logically  the  second  line  of  opposition — that  the  Articles  of  (a)  Revision 
Confederation  were  correct  in  principle  but  needed  amend- 
ment. The  experience  of  the  past  years  had  shown  this ;  and 
the  opponents  of  the  Virginia  plan  were  ready  to  make  con- 
cessions and  to  give  to  Congress  many  additional  powers,  but 
the  principles  of  the  Confederation  must  remain  unaltered. 
Whatever  different  motives  moved  these  parties,  the  division 
was  best  seen  in  the  grouping  of  the  large  states  on  the  side  (3)  Large 
of  the  Virginia  plan  for  a  national  government  and  of  the  ItatesSSD 
smaller  ones  in  opposition.  The  reason  was  obvious.  If  the 
smaller  states  allowed  the  larger  ones  their  true  proportional 
representation,  they  would  be  outvoted.  They  feared  oppression ; 
their  pride  suffered,  for  as  sovereign  states  they  felt  themselves 
the  equals  of  the  others.  Whatever  motives  were  operative  the 
debate  turned  into  a  struggle  between  the  large  and  small  states 
over  the  questions  of  representation. 

THE  NEW  JERSEY  PLAN 

On  June  15   Paterson  of  New  Jersey  laid  before  the  con-  (x>  single 
vention/a  scheme  known  as  the  New  Jersey  plan,  embodying  eacrstate 
the  principles  of  the  opponents  of  the  plan  for  strong  national  onevote 
government.1    It  was  merely  a  revision  and  enlargement  of  the 
Articles  of   Confederation.    The   idea  of   a  confederation  was 
retained,  and  each  state  had  a  single  vote  in  Congress  which 
still  consisted  of  a  single  chamber.    A  plural  executive  was  to  be  (a)  piurai 
elected  by  Congress  to  enforce  the  acts  of  Congress  and  to 
appoint  the  federal  officers  not  otherwise  provided  for.    Addi- 
tional powers  were  given  to   Congress  so  that  it  could  raise  (3)  congress 

,    given  power 

taxes  by  levying  duties  upon  imports,  regulate  commerce  and  to  tax 


trade,  both  foreign  and  domestic,  and  make  requisitions  which 

if  not  paid  within  a  specified  time  could  be  collected  as  Con-  trade 

gress   might    direct.    A    federal    judiciary  was    to   be    created 

1  Elliot's  Debates,  Vol.  I,  pp.  175-177- 


38      THE  GOVERNMENT  OF  THE  UNITED  STATES 

(4)  judiciary  having  jurisdiction  over  impeachments,  captures  on  the  high  sea, 
naUonaTLws  all  cases  m  which  foreigners  should  be  interested,  and  cases  in 
and  treaties  wnich  the  construction  of  a  treaty  was  concerned  or  "  which 
may  arise  on  any  of  the  acts  for  the  regulation  of  trade,  or  the 
collection  of  federal  revenue."  A  valuable  and  interesting  con- 
tribution was  found  in  the  seventh  article  of  the  plan,  which 
declared  "  that  all  acts  of  the  United  States  in  Congress  as- 
sembled, .  .  .  and  all  treaties  .  .  .  shall  be  the  supreme  law  of  the 
respective  states  so  far  as  those  acts  or  treaties  shall  relate  to 
the  said  states,  or  their  citizens ;  and  that  the  judiciary  of  the 
several  states  shall  be  bound  thereby  in  their  decisions,  anything 
in  the  respective  laws  of  the  individual  states  to  the  contrary 
notwithstanding."  Perhaps  unintentionally  the  authors  of  the  New 
Jersey  plan  had  contributed  the  most  valuable  single  principle  — 
the  idea  of  securing  the  supremacy  of  federal  acts  by  means 
of  the  courts,  state  as  well  as  national.  It  was  the  development  of 
this  idea  which  makes  the  Constitution  and  all  treaties  and  laws 
made  in  pursuance  thereof  "  the  supreme  law  of  the  land." 

The  merits  of  both  plans  were  set  forth  at  length  by  both 
parties,  but  the  small  state  party  through  threats  of  secession 
extorted  compromises.  The  whole  Constitution  is  a  compromise, 
and  it  conceals  many  of  its  most  distinctive  features  to  concen- 
trate the  attention  solely  on  the  three  compromises  of  repre- 
sentation, slavery,  and  commerce.  The  real  compromise  was 
between  an  efficient  national  government  and  a  federation.  On 
many  points  the  nationalists  won  substantial  victories,  but  the 
Ninth,  Tenth,  and  Eleventh  Amendments  did  much  to  satisfy 
those  who  preferred  the  federal  system.  Usage,  interpretation, 
and  the  Fourteenth  Amendment  have  increased  the  national 
features  of  the  system  until  its  present  functions  and  powers 
are  far  beyond  what  even  the  nationalists  in  the  convention 
planned. 

THE  COMPROMISES  OF  THE  CONSTITUTION 

compromises        The  experiences  of  the  Confederation  were  fresh  in  mind, 

executive        ancl  tne  new  Constitution  was  devised  so  that  these  faults  should 

not  be  repeated ;  but  everywhere  in  the  institutions  they  created 

and  the  powers  they  granted  is  seen  the  compromise  between 


MAKING  THE  CONSTITUTION  39 

the  parties.  A  national  executive  was  created,  serving  for  a 
short  term,  but  reeligible ;  chosen  not  by  the  legislatures  of 
states  but  by  electors  who  represented  the  local  majorities  in  the 
states.  A  legislature  was  established  consisting  of  two  houses ;  compromises 
in  one  the  equality  of  the  states  was  recognized  and  each  state  °urelegisli 
had  two  votes,  to  be  given,  however,  not  as  a  state  but  as  the 
individuals  who  represented  the  state  should  determine.  The 
idea  of  a  federation  of  states  was  further  recognized  in  the  elec- 
tion of  the  senators,  who  were  to  be  chosen  not  by  popular 
vote  but  by  the  state  legislatures.  In  the  House  of  Representa- 
tives the  principle  of  popular  sovereignty  was  recognized,  and 
the  members  were  chosen  by  the  people  in  accordance  with 
the  population  of  the  states.  It  was  in  the  composition  of  the 
legislature  that  two  of  the  famous  compromises  were  made. 
The  composition  of  the  Senate  satisfied  state  pride  ;  that  of  the 
House  gave  weight  to  population.  Moreover,  in  determining  Apportion- 

c-,       mentofrepre- 

the  population  of  a  state  slaves  were  to  be  reckoned  as  three  fifths  sentation 
of  their  actual  number.  Again,  in  the  powers  granted  to  Congress 
is  seen  a  compromise.  At  one  stage  in  the  debates  of  the  con- 
vention it  was  proposed  that  Congress  should  have  such  general 
powers  as  the  needs  of  the  Union  should  require.  This  was 
not  agreed  to,  and  by  a  compromise  Congress  was  given  spe-  compromises 

.  ~  _.,.,,...  -  ,  ,    over  powers 

cmc  powers.    Taking  the  division  of  powers  between  state  and  granted  to 
national  authority  as  found  in  the  Articles  as  a  basis,  such  new  Con£res 
powers  were  given  to  Congress  as  experience  had  shown  to  be 
necessary.    Congress  had  all  the  powers  of  the  old  confederation 
and,  in  addition,  could  levy  taxes,  lay  duties,  regulate  trade,  and 
make  all  laws  necessary  and  proper  for  the  execution  of  the 
specific  powers  granted.    In  this  division  of  powers  the  third  of 
the  three  most  frequently  mentioned  compromises  is  found  — 
Congress  could  regulate  commerce,  but  could  not  forbid  the  slave 
trade  until  1808. 

While  the  specific  powers  of  Congress  were  enlarged,  the  pro-  Prohibitions 
hibitions  on  the  states  were  increased.  Attempts  were  made  to 
prevent  the  recurrence  of  the  evils  experienced  during  the  Con- 
federation, and  the  states  were  forbidden  to  emit  bills  of  credit, 
to  make  anything  but  gold  or  silver  legal  tender,  to  pass  any  law 
impairing  the  obligation  of  contract,  or  to  lay  duties  upon  exports 


Fear  of 
federal  en- 
croachment 


Tt|e  federal 
judiciary 


Acting  on 

individuals 

insures 

federal 

supremacy 


40      THE  GOVERNMENT  OF  THE  UNITED  STATES 

or  imports.  Fear  of  federal  encroachment  led  to  the  adoption 
of  the  Ninth  and  Tenth  Amendments,  which,  if  they  did  not 
weaken  the  instrument,  were  intended  to  prevent  its  expansion 
by  legislation.  By  the  Ninth  Amendment  it  is  declared  that 
the  enumeration  of  certain  rights  shall  not  be  construed  to  deny 
others  retained  by  the  people,  while  the  Tenth  Amendment 
reserves  to  the  people  or  the  states  those  powers  not  expressly 
granted  to  the  government  and  not  expressly  forbidden  to  the 
states.  These  two  amendments  not  only  satisfied  the  oppo- 
nents of  nationalism  but  did  much  to  give  the  Constitution  a 
rigidity  which  has  kept  the  system  close  to  the  letter  of  the 
original  document. 

In  addition  to  executive  and  legislative  departments  a  national 
judiciary  was  created.  Its  jurisdiction  extended  over  all  cases 
arising  under  the  Constitution  or  the  laws  and  treaties  made 
under  it.  The  Constitution  and  laws  of  the  United  States  were 
declared  to  be  the  supreme  law  of  the  land,  and  the  judges  of 
all  courts  were  bound  thereby,  "  anything  in  the  constitution  or 
laws  of  any  state  to  the  contrary  notwithstanding."  This  asser- 
tion of  a  national  law  which  should  be  enforceable  by  the  courts 
was,  strangely  enough>  a  development  of  the  New  Jersey  plan, 
and  in  the  hands  of  the  party  for  strong  government  became 
its  greatest  victory.  Even  Madison  was  puzzled  as  to  the  method 
of  dealing  with  a  delinquent  or  refractory  state,  and  it  was  not 
until  the  convention  was  well  advanced  that  the  principle  of 
operation  upon  individuals  rather  than  upon  states  was  discov- 
ered. The  cumbersome  and  dangerous  method  of  attempting 
to  compel  the  government  of  a  sovereign  state  to  do  its  duty 
was  fortunately  abandoned,  and  the  laws  made  under  the  liberal 
powers  granted  to  Congress  were  made  enforceable  in  the  ordi- 
nary courts  not  upon  defiant  states  but  upon  disobedient  individ- 
uals. The  declaration  that  the  laws  of  Congress  were  the  laws 
of  the  land  transferred  their  enforcement  from  causes  for  diplo- 
matic negotiation  into  simple  cases  at  law.  The  Supreme  Court, 
moreover,  also  served  as  the  tribunal  for  disputes  between  states 
and  was  given  jurisdiction  in  cases  where  two  or  more  states 
were  concerned  and  in  suits  brought  by  citizens  against  a  state. 
Part  of  this  power,  however,  was  withdrawn  as  a  result  of  the 


MAKING  THE  CONSTITUTION  41 

Eleventh  Amendment  adopted  in  1 798,  by  which  a  state  was  de- 
clared immune  from  suit  by  citizens  of  another  state  or  a  foreign 
state.  State  sovereignty  was  thus  satisfied,  but  the  Constitution 
is  perceptibly  weaker  than  when  it  came  from  the  convention. 

In  another  way  the  judiciary  exercised  power.  The  'declara- 
tion that  the  Constitution  was  the  supreme  law  of  the  land  gave 
to  the  court  the  power  of  judicial  review  of  both  stajte  and 
national  legislation.  AS  has  been  shown,  this  principle  was  not 
new  and  the  colonies  had  been  accustomed  to  a  somewhat 
analogous  action  by  the  Privy  Council.  It  has  also  been  noted 
that  in  cases  of  conflict  the  courts  of  the  states  enforced  the 
provisions  of  the  state  constitutions  rather  than  the  acts  of  the 
legislature.  By  utilizing  this  principle  the  convention  avoided 
grave  difficulties.  At  one  time  it  was  proposed  that  the  national 
legislature  should  have  a  veto  upon  the  acts  of  the  states,  but 
this  was  fortunately  discarded  and  a  simpler  and  safer  method 
of  control  was  found.  The  supremacy  of  the  Constitution  was  in  case  of 
declared  and  the  judges  bound  to  enforce  it.  The  states  could 
not  be  jealous  of  the  power  of  a  judiciary  which  had  no  power 
of  veto  but  which  simply  enforced,  in  a  case  of  conflict,  the 
supremacy  of  the  higher  law.  Constitutional  questions  were 
removed  from  politics,  and  the  action  of  the  court  was  confined 
to  the  case  before  it.  Its  decision  dealt  not  with  the  wisdom  or 
justice  of  the  act,  but  in  every  case  asserted  the  authority  of 
the  higher  law.  Thus  an  ascending  series  of  laws  was  created,  — 
state  laws,  state  constitutions,  federal  laws,  and  the  national  Con- 
stitution, —  each  of  which  was  enforced  in  its  own  sphere.  The 
court  was  truly  what  it  has  been  so  often  called,  the  guardian 
of  the  Constitution. 

The  judiciary  and  the  assertion  that  the  Constitution  was  the 
supreme  law  of  the  land  were  the  central  features  of  the  Con- 
stitution. Without  them  the  system  would  fall,  to  pieces.  By 
them  the  various  parts  are  cemented  together  and  the  various 
functions  made  to  articulate.  By  them  the  federal  law  is  brought  to 
every  citizen  and  the  federal  Constitution  is  preserved  from  attack. 

From  another  point  of  view  the  Constitution  shows  the  spirit  of 
compromise  —  the  compromise  between  democracy  and  conserva- 
tism. The  Revolution  increased  and  emphasized  the  democratic 


42      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Compromise 
between 
democracy 
and  conserv- 
atism pro- 
duced checks 
and  balances 


Separation  of 
the  depart- 
ments of 
government 


Check  on 
election  of 
the  president 


element  in  the  country,  for  without  utilizing  the  strength  of 
those  who  possessed  no  share  in  the  government  the  war  could 
not  have  succeeded.  Yet  the  new  state  constitutions  were  not 
much  more  democratic  than  the  old  colonial  governments.  The 
conflict  between  the  propertied  governing  class  and  the  unfran- 
chised  had  been  one  of  the  difficulties  with  which  the  states  had 
to  contend.  The  members  of  the  convention  were  not  demo- 
crats ;  many  of  them  believed  that  all  the  evils  of  the  Confedera- 
tion had  come  "  from  the  excess  of  democracy,"  and  it  was  held 
"  that  property  was  the  primary  object  of  society."  The  problem, 
as  they  saw  it,  was  so  to  construct  the  government  that  the  rights 
of  property  would  be  safeguarded  against  the  attacks  of  the  mul- 
titude and  yet  erect  a  government  which  should  be  republican 
in  form  and  spirit.  Fear  of  monarchy  and  fear  of  democracy 
produced  the  checks  and  balances  of  the  system. 

To  prevent  the  usurpation  of  any  one  department  of  the  gov- 
ernment a  careful  separation  of  powers  was  devised.  The  presi- 
dent was  given  powers  sufficient  to  make  him  a  strong  executive, 
yet  he  shared  with  the  Senate  the  diplomatic  and  appointing 
power  and  with  Congress  his  power  to  make  war.  Congress  was 
explicitly  granted  wide  powers,  and  experience  has  shown  that 
their  field  can  be  still  further  extended  by  interpretation,  but  the 
assent  of  the  president  was  necessary  to  every  law  unless  two 
thirds  of  each  house  overrode  his  disapproval.  Finally,  the  acts 
of  both  the  president  and  Congress  were  subject  to  the  review  of 
the  courts  and  might  be  tested  by  the  standard  of  the  Constitution. 
The  three  departments  were  not  formally  declared  separate,  — 
indeed,  each  must  at  some  time  touch  the  others, — yet  in  the 
instrument  the  sphere  of  each  was  clearly  marked  out  and  legal 
usurpations  rendered  impossible. 

The  checks  and  balances  were  carried  still  further  by  the 
method  of  choice  of  the  agencies  of  the  government.  The  elec- 
tion of  the  president  was  intrusted  not  directly  to  the  people 
but  to  electors  chosen  by  the  states,  and  a  majority  of  the  votes 
of  these  electors  was  made  necessary  for  election.  The  rise  and 
development  of  political  parties  soon  rendered  this  electoral 
college  a  mere  body  of  registration.  But  it  is  important  to  re- 
member that  the  will  which  is  registered  by  this  body  is  not 


MAKING  THE  CONSTITUTION  43 

necessarily  the  will  of  the  majority  of  the  people,  but  the  sum 
of  the  majorities  in  the  various  states.  The  term  of  the^presi- 
dent  is  short,  but  reelection  is  not  prohibited,  though  custom  has 
apparently  set  the  limit  of  two  terms  for  any  one  man. 

The  legislative  department  also  shows  the  fear  of  democracy,  check  on 
The  senators  were  chosen  by  the  legislatures  of  the  states  for  congress* 
terms  of  six  years,  one  third  changing  every  two  years,  and  were 
thus  expected  to  be  the  champions  of  conservatism.  The  mem- 
bers of  the  House  were  elected  directly  every  two  years.  At  one 
stage  in  the  convention  it  was  proposed  to  have  the  representa- 
tives chosen,  like  the  senators,  by  the  state  legislatures,  but  it  was 
held  wise  to  give  the  government  as  broad  a  base  as  possible, 
and  it  was  decided  that  the  representatives  should  be  chosen 
directly  by  the  people,  each  state,  however,  determining  the 
franchise.  The  different  terms  of  the  president,  senators,  and 
representatives  and  the  different  methods  of  election  were  felt  to 
give  security  against  the  unexpected  capture  of  the  government 
by  any  faction.  Thus  departmental  usurpation,  democracy,  and 
monarchy  were  guarded  against. 

In  the  method  of  amendment  the  convention  improved  upon  Method  of 
the  Articles  of  Confederation.    In  that  system  the  assent  of  all 
the  states  had  been  necessary  to  effect  a  change,  and  it  has  been 
seen  how  Rhode  Island  prevented  the  adoption  of  the  financial 
amendment.    The  otoT'method  was  a  proper  one  for  a  confedera- 
tion of  sovereign  states  where  each  member  was  sovereign  and 
equal.    But  the  old  Confederation  was  a  failure.   The  convention 
framed  a  national  constitution  responsive  to  the  majority  and  not 
capable  of  being  thwarted  by  the  will  of  a  single  state,  and  yet 
not  so  weak  as  to  be  at  the  mercy  of  the  momentary  whim  of  a 
chance  majority.    It  was  to  combine  stability  and  flexibility.    The 
scheme  adopted  was  a  twofold  process  and  involved  the  framing 
and  ratification  of  the  amendment.    To  frame  an  amendment  it 
was  necessary  that  two  thirds  of  both  Houses  should  agree  on 
the  proposed  measure  or  that  upon  the  application  of  the  legis- 
latures of  two  thirds  of  the  states  Congress  should  call  a  conven 
tion  to  frame  the  amendment.    As  a  result  of  either  method 
assent  of  three  fourths  of  the  states  was  necessary,  giv* 
by  their  legislatures  or  by  conventions.   The  compror" ' 


44      THE  GOVERNMENT  OF  THE  UNITED  STATES 

nationalism  and  confederacy  is  here  seen,  as  well  as  the  one  be- 
tween the  fear  of  democracy  and  the  necessity  for  progress.  The 
ratification  depends  upon  state  action  ;  and  however  great  the 
popular  demand  ratification  is  not  by  popular  referendum,  and 
no  matter  how  great  a  popular  majority  may  be  rolled  up,  unless 
three  fourths  of  the  states  agree  the  measure  is  defeated.  With 
the  massing  of  population  in  certain  states  and  the  admission  of 
thinly  settled  states  it  has  been  calculated  that  in  theory  one 
fortieth  of  the  population  could  defeat  the  will  of  the  other 
thirty-nine  fortieths.  To  accomplish  this,  however,  it  is  neces- 
sary to  combine  all  the  small  states,  a  thing  practically  impossible 
because  of  their  divergent  interests.  On  the  other  hand,  amend- 
ment and  change  are  possible  even  in  the  face  of  opposition  by 
certain  large  interests  in  certain  states.  That  the  Constitution 
is  not  easily  amended  has  been  considered  one  of  its  good 
features,  but  that  it  can  be  amended  when  the  necessity  has 
been  clearly  shown  has  brought  satisfaction  if  not  improvement. 

THE  RATIFICATION  OF  THE  CONSTITUTION 

When  the  work  of  the  convention  was  done  the  question  as 
to  ratification  of  the  Constitution  arose.   Legally,  according  to  the 
Articles  of  Confederation,  the  new  Constitution  should  be  sub- 
mitted to  Congress  and,  when  agreed  to  by  all  the  different 
state  delegations,  should  be  transmitted  to  the  state  legislatures, 
whose  unanimous  consent  would  be  necessary  for  ratification. 
Since  Rhode  Island  was  not  represented  at  the  convention  her 
adoption  of  the  Constitution  was  unlikely,  and  the  acceptance  of 
the  instrument  by  all  the  state  legislatures  was  problematical. 
The  convention,  therefore,  disregarding  the  provisions  of  the 
Method  of       Articles,  inserted  the  provision  that  the  ratification  of  nine  states 
ratification      should  be   sufficient  for  the   establishment  of  the   Constitution 
between  the  states  so  ratifying.   The  completed  Constitution  was 
transmitted  to  Congress  with  an  urgent  resolution  that  Congress 
should  submit  it  to  conventions  summoned  for  the  purpose  of 
considering  it  in  the  various  states.    Congress  somewhat  reluc- 
fly  agreed  and  transmitted  the  Constitution  to  the  states.    The 
'<m  for  ratification  lasted  over  a  year,  and  at  times  the 


MAKING  THE  CONSTITUTION  45 

result  seemed  doubtful.  Delaware  ratified  it  Unanimously,  Decem- 
ber 7,  1787;  Pennsylvania  followed  suit;  in  New  Jersey  and 
Georgia  there  was  again  unanimity,  and  only  a  slight  minority 
in  Connecticut.  In  Massachusetts  there  was  more  danger.  The 
men  who  had  "  been  out  with  Shays  "  disliked  the  provisions 
against  paper  money,  and  there  were  some  influential  men,  revo- 
lutionary leaders,  whose  attacks  upon  all  government  and  whose 
apostrophes  of  liberty  were  well  remembered.  Chief  among  these 
were  Samuel  Adams  and  John  Hancock,  but  when  their  influence 
was  secured  success  seemed  more  possible.  Even  then  the  decision 
was  doubtful  until  the  method  of  ratification  with  suggested  amend- 
ments was  devised.1  This  proved  a  happy  expedient  and  was 
followed  by  six  states.  On  June  21,  1788,  New  Hampshire,  the 
ninth  state,  completed  the  number  necessary  for  ratification  ;  four 
days  later  Virginia  and  a  month  later  New  York  gave  their  assent. 
North  Carolina  delayed  until  1789  and  Rhode  Island  until  1790. 

The  campaign  for  ratification  produced  much  discussion  and 
several  pamphlets  of  great  value.  Chief  among  these  is  "The  "The 
Federalist,"  a  series  of  papers  by  Hamilton,  Madison,  and  Jay, 
urging  the  adoption  of  the  Constitution  and  explaining  its 
merits.  With  great  learning  and  keen  analysis  the  authors  dis- 
closed the  weakness  of  the  old  Confederation  and  emphasized 
the  excellences  of  the  new  system.  Not  only  were  the  features 
of  efficient  government  set  forth  but  an  attempt  was  made  to 
quiet  the  apprehensions  of  monarchy  and  tyranny.  Although 
"  The  Federalist  "  was  frankly  a  partisan  campaign  document 
it  is  the  best  contemporary  exposition  of  the  Constitution. 

As  a  result  of  the  campaign  for  ratification  political  parties  origin  of 
were  solidified.    The  friends  of  a  strong  and  efficient  govern-  political 


ment  acted  together  for  the  adoption  of  the  Constitution.  Those 
who  believed  in  reducing  the  powers  of  the  national  government  contest 
to  a  minimum  opposed  the  ratification.  When  the  new  system 
was  put  in  operation  these  political  divisions  continued  over  the 
question  of  liberal  or  literal  interpretation  of  the  Constitution 
—  the  strict  or  loose  construction  of  its  powers  —  and  formed 
the  beginnings  of  the  first  two  great  political  parties. 

1  See   S.  B.  Harding,  The   Contest   over  the  Ratification  of  the  Federal 
Constitution  in  Massachusetts. 


\ 


46      THE  GOVERNMENT  OF  THE  UNITED  STATES 

* 

The    various    state    conventions    had    submitted    over    one 

hundred  amendments  to  the   Constitution  on  which  Congress 

was  called  to  act.    The  most  common  criticism  was  that  the 

The  BUI         instrument  lacked  a  Bill  of  Rights.    As  has  been  seen,  most 

of  Rights 

of  the  state  constitutions  contained  such  articles,  and  the 
political  philosophy  of  the  time  demanded  such  satisfaction. 
Consequently  Congress  yielded.  And  in  spite  of  Hamilton's 
assurance  that  such  declarations  were  unnecessary,  as  the  Con- 
stitution was  a  document  granting  specific  powers,  Congress 
submitted  twelve  amendments  to  the  states,  ten  of  which  were 
adopted.  The  first  eight  amendments  deal  with  private  rights, 
and  will  be  later  examined,  while  the  Ninth  and  Tenth  deal 
with  the  reservation  of  powers,  preserving  to  the  state  or  the 
people  all  powers  not  explicitly  granted.  Thus  the  'doctrine  is 
emphasized  that  the  Constitution  creates  not  a  sovereign  govern- 
ment but  a  government  subordinate  to  the  people,  — a  government 
of  delegated  powers,  sovereign,  it  is  true,  within  its  sphere,  but 
subordinate  not  to  the  will  of  the  state  governments,  as  the 
Confederation  had  been,  but  to  the  people  acting  through  the 
process  of  amendment.  Thus  the  people,  not  the  state  govern- 
ments, have  withdrawn  powers  by  the  Eleventh  Amendment 
and  granted  new  powers  by  the  Fourteenth  and  Seventeenth 
and  Eighteenth  Amendments.  But  Congress  on  its  own  initia- 
tive cannot  widen  its  field  of  action  by  the  exercise  of  any 
power  not  granted  to  it.  Unlike  the  sovereign  Parliament  of 
Great  Britain,  Congress  is  subordinate  to  the  Constitution,  and 
the  people  are  sovereign. 


\ 


CHAPTER  IV 
CONSTITUTIONAL  PRINCIPLES 

THE  CONSTITUTION  OF  THE  UNITED  STATES  ONE  OF 
DELEGATED  POWERS 

One  of  the  most  striking  features  of  the  Constitution  of  the 
United  States,  and  one  which  distinguishes  it  most  clearly 
from  the  constitution  of  Great  Britain,  is  the  sovereignty  of 
the  people.  In  England,  Parliament  is  legally  sovereign,  or,  to 
be  more  accurate,  the  king  in  Parliament,  while  the  actual 
sovereignty  is  exercised  neither  by  the  king  nor  Parliament  but  * 
by  the  House  of  Commons  and  the  Cabinet.  The  important 
thing  to  notice,  however,  is  that  Parliament  possesses  the  legal 
sovereignty,  actual  and  uncontrolled.  It  has  the  power  not  only 
to  pass  any  and  all  legislation  but  also  to  alter  and  amend  the 
very  constitution  under  which  it  acts.  Thus,  in  1716,  a  Parlia- 
ment, elected  to  sit  for  three  years,  prolonged  its  own  existence 
by  the  passage  of  the  Septennial  Act;  and  in  1911  Parliament 
very  greatly  limited  the  power  of  the  House  of  Lords.  No  act 
of  Parliament  can  be  unconstitutional  since  Parliament  is 
sovereign,  and  for  a  like  reason  no  act  is  beyond  the  competency 
of  Parliament.  Parliament  is  thus  at  once  an  uncontrolled 
legislative  and  constituent  assembly. 

Such  power  in  the  United  States  resides  not  in   Congress,  popular 
nor  in  any  department  of  the  government,  nor  in  the  states,  but  in  the  united 
in  the  people.    The  first  sentence  of  the  Constitution  clearly  states 
expresses  the  American  theory  in  sharp  contrast  to  the  English 
theory  :  "  We  the  people  of  the  United  States  ...  do  ordain  and 
establish  this  Constitution  for  the  United  States  of  America." 

The  Constitution  was  not  the  work  of  the  old  Congress  nor 
of  a  committee  of  Congress  but  of  an  Qxtra-legal  body,  a  con- 
stituent assembly,  whose  work  was  without  legal  force  until 
approved  and  ratified  by  some  other  body.  Doubtless  it  was 

47 


48      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  Con- 
stitution 
adopted  not 
by  Congress 
or  the  state 
legislatures 
but  by  the 
people  in 
conventions 


The  Consti- 
tution the 
grant  of  the 
people 


The  govern- 
ment limited 
by  the  dele- 
gation of 
powers  in  the 
Constitution 


the  intention  of  Congress  that  it  should  consider  the  work  of  the 
convention  as  it  had  debated  the  proposed  amendments  to  the 
Articles  of  Confederation,  but  with  extraordinary  self-denial  it 
submitted  the  Constitution  directly  to  the  stateg.  Here  again, 
in  the  ratification  by  the  states,  is  seen  the  emphasis  given  to 
the  sovereignty  of  the  people.  Not  the  ordinary  state  legisla- 
tures but  specially  summoned  constituent  conventions  accepted 
the  work  of  the  Philadelphia  convention.  All  that  Congress  or 
the  various  state  legislatures  did  was  to  summon  conventions  to 
pass  upon  the  proposed  new  frame  of  government.  Nowhere 
in  the  framing  or  the  adoption  of  the  Constitution  were  the 
legislative  departments  of  the  governments  primarily  employed. 

The  Constitution,  then,  not  being  made  by  Congress  nor  the 
state  legislatures  but  containing  limitations  upon  the  powers  of 
both  Congress  and  states,  becomes  the  supreme  law  of  the  land. 
The  Constitution  somewhat  resembles  the  old  colonial  charters 
or  the  newly  adopted  state  constitutions  in  that  it  is  a  grant  of 
authority  from  some  superior  body.  Instead  of  a  grant  from  the 
crown,  as  were  the  old  charters,  the  new  Constitution,  like  the 
state  constitutions,  was  the  grant  of  the  people  themselves  acting 
in  their  sovereign  capacity  through  specially  summoned  con- 
ventions. The  government  of  the  United  States  is  thus  not 
sovereign,  like  Parliament,  for  both  the  governments  of  the  states 
and  the  government  of  the  nation  depend  upon  their  constitu- 
tions —  the  grants  of  the  people.  Both  Congress  and  the  state 
legislatures  are  thus  subordinate  legislative  bodies  subject  to  the 
limitations  of  their  constitutions  and  deriving  their  powers  from 
the  superior  unlimited  sovereign  —  the  people. 

The  fact  that  the  Constitution  is  one  of  delegated  powers 
and  does  not  grant  unlimited  sovereignty  is  emphasized  by  the 
Ninth  and  Tenth  Amendments.  When  the  Constitution  came 
from  the  framers  there  were  grants  of  powers  to  Congress  and 
prohibitions  upon  both  the  states  and  Congress,  but  these  did 
not  seem  .sufficiently  explicit  to  the  people  in  the  ratifying  con- 
ventions. Six  states  proposed  amendments  dealing  with  the 
non-delegated  powers.  It  might  be  argued,  as  did  Hamilton, 
that  since  the  government  was  one  of  delegated  powers  it  could 
act  only  according  to  the  delegation,  but  the  people  needed 


CONSTITUTIONAL  PRINCIPLES  49 

reassuring.  Hence,  from  the  various  propositions  offered  by 
state  conventions,  Madison  framed  what  became  the  Ninth  and 
Tenth  Amendments : 

IX.  The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not 
be  construed  to  deny  or  disparage  others  retained  by  the  people. 

X.  The  powers  not  delegated  to  the  United  States  by  the  Consti- 
tution, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people. 

Thus  the  fact  was  formally  stated  that  the  government  was 
one  of  delegated  powers  and  one  in  which  all  powers  not  dele- 
gated are  reserved  to  the  authorities  granting  the  Constitution. 

Even  this  declaration  was  weaker  than  many  wished  it,  for  at  The  govem- 
one  stage  in  the  debates  upon  the  amendments  it  was  urged  that 
it  should  read,  "  the  powers  not  expressly  delegated.  ..."  Fortu- 
nately,  however,  this  was  dropped.  As  a  result,  while  Congress  or 
the  officers  of  the  government  only  exercise  powers  within  the  field 
of  delegated  authority,  it  is  not  necessary  to  show  that  the  form  of 
action  is  explicitly  granted.  This  principle  was  clearly  set  forth  by 
Chief  Justice  Marshall  in  Mcddloch  v.  Maryland,  where  he  said  : 

This  government  is  acknowledged  by  all  to  be  one  of  enumerated  Marshall 
powers.  .  .  .  But  the  question  respecting  the  extent  of  the  powers  actu-  powers *" 
ally  granted  is  perpetually  arising  and  will  probably  continue  to  arise  as 
long  as  our  system  shall  exist.  ...  But  we  think  the  sound  construc- 
tion of  the  Constitution  must  allow  to  the  national  legislature  that  dis- 
cretion, with  respect  to  the  means  by  which  the  powers  it  confers  are 
to  be  carried  into  execution,  which  will  enable  that  body  to  perform  the 
high  duties  assigned  to  it  in  the  manner  most  beneficial  to  the  people. 
Let  the  end  be  legitimate,  let  it  be  within  the  scope  of  the  Constitution, 
and  all  means  which  are  appropriate,  which  are  plainly  adapted  to  that 
end,  which  are  not  prohibited  but  consist  with  the  letter  and  spirit  of 
the  Constitution,  are  constitutional. 

And  again  in  the  same  opinion  5he  said : 

.  .  .  But  where  the  law  is  not  prohibited,  arid  is  really  calculated  to 
effect  any  of  the  objects  intrusted  to  the  government,  to  undertake -here 
to  inquire  into  the  degree  of  its  necessity  would  be  to  pass  the  line 
which  circumscribes  the  judicial  department  and  to  tread  on  legislative 
ground.  This  the  court  disclaims  all  pretensions  of  doing.1 

1  4  Wheat.,  316,  405,  421,  423. 


50      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Characteris- 
tics of  powers 
delegated  to 
the  federal 
government 


Political 
institutions 


National 
government 
prohibited 
from  domes- 
tic legislation 


It  is  characteristic  of  the  powers  delegated  to  the  national 
government  that  they  are  of  a  political  nature.1  The  Constitution 
did  not  attempt  to  establish  a  code  of  laws  to  regulate  all  the 
relations  of  life,  but  rather  to  create  a  political  system,  part 
national  and  part  local,  capable  of  achieving  the  objects  set  forth 
in  the  preamble :  "  To  form  a  more  perfect  union,  establish  jus- 
tice, insure  domestic  tranquillity,  provide  for  the  common  defense, 
promote  the  general  welfare  and  secure  the  blessings  of  liberty." 

The  greater  part  of  the  Constitution  is  taken  up  with  the 
description  of  the  political  institutions  of  the  government,  — 
with  Congress,  its  composition,  and  with  the  president  and  the 
complicated  method  of  election,  —  while  the  powers  of  each 
department  are  disposed  of  in  relatively  few  words.  Thus  it  is 
significant  that  of  the  ten  sections  of  the  first  article,  which  estab- 
lishes the  national  legislature,  only  one  contains  grants  of  power, 
and  these  powers,  ample  as  they  have  been  found  to  be,  are 
concerned  with  international  or  national  relations,  with  defense 
and  the  maintenance  of  national  authority,  rather  than  with  the 
relations  of  man  to  man. 

That  the  powers  of  the  national  government  are  political 
rather  than  domestic  is  still  further  emphasized  by  the  fact  that 
the  prohibitions  laid  upon  the  states  are  not  upon  the  passage 
of  domestic  or  social  regulations  as  much  as  they  are  upon  the 
exercise  of  those  political  functions  which  the  hard  experience 
of  the  Confederation  had  demonstrated  should  be  vested  in  the 
national  government.  Even  further  —  the  federal  government 
is  especially  prohibited  from  legislating  upon  certain  fundamental 
rights,  and  although  Congress  cannot  deprive  a  man  of  "  life, 
liberty,  or  property,  without  due  process  of  law,"  there  was  noth- 
ing to  prevent  a  state  from  doing  so  until  the  adoption  of  the 
Fourteenth  Amendment  in  1868.  The  powers  delegated  to  the 
national  government  therefore  (deal  with  international  relations, 
L  with  defense*^ with  interstate  relations,  together  with  the  most 
vital  of  all  powers  -$the  power  to  levy  taxes,  to  pay  the  public 
debts,  and  tojprovide  for  the  common  defense  and  general  welfare. 

Such  being  the  nature  of  the  powers  delegated  to  the  United 
States,  the  characteristics  of  the  powers  reserved  to  the  states 

1  F.  J.  Stimson,  The  American  Constitution,  pp.  14-16. 


CONSTITUTIONAL  PRINCIPLES  51 

or  to  the  people  are  obvious.    The  \  social  and  personal  rights  of  Powers  re- 
the  citizens  are  in  the  care  of  the  states.    To  protect  these  rights  stltes  deaihe 
the  states  have  full  authority  and  power,  while  prohibitions  are 


expressly  laid  upon  the  national  government.    These  prohibitions  personal 

,    .  •        A      •  i      T     o  .        rights  of  the 

are  found  enumerated  in  express  terms  in  Article  I,  Sect,  ix,  citizens 

and  in  the  first  eight  Amendments,  —  the  so-called  Federal  Bill 

of  Rights,  —  which  places  beyond  federal  interference  the  funda- 

mental rights  of  the  citizen.    Again,  these  prohibitions  are  im- 

plied in  the  Ninth  and  Tenth  Amendments,  by  which  all  powers 

not  delegated  are  reserved  to  the  states  or  to  the  people.    Ex- 

perience, interpretation,  legislation,  and  desire  have  widened  the 

scope*of  the  powers  granted  to  the  national  government,  but  have 

added  no  new  ones  ;  only  an  amendment  can  do  that  •  This  has 

been  done  four  or  possibly  five  times.1   In  the  Thirteenth,  Four- 

teenth, and  Fifteenth  Amendments,  adopted  to  end  the  slavery 

contest  and  secure  to  the  negro  the  rights  which  the  abolition- 

ists* thought  na^dB^,  are  found  clauses  which  deal  not  with  the 

fundamenta^^^SSIork  of  the  government  but  with  the  states 

in  their  'refl^^M  their  own  citizens.    The  clauses  "No  State 

shall  make  or  ^^rce  any  law  which  shall  abridge  the  privileges 

or  immunities  of  citizens  of  the  United  States  ;    nor  shall  any 

State  deprive  any  person  of  life,  liberty,  or  property,  without  due 

process  of  law  ;    nor  deny  to  any  person  within  its  jurisdiction 

the  equal  protection  of  the  laws  "  have  brought  consequences 

quite  unexpected  by  the  makers.    While  the  last  clauses  of  these 

three  amendments  give  Congress  the  power  to  enforce,  by  ap- 

propriate legislation,  the  provisions  of  these  articles,  such  legis- 

lation has  never  been  satisfactory.    But  the  judiciary  in  enforcing  judicial  in- 

the  provisions  of  the  amendments  has  invalidated  many  state  extends  fed1- 

laws  passed  to  regulate  the  social  or  domestic  relations  of  their  eralcontro1 

citizens.    For  example,  the  judicial  definition  of  "  due  process  " 

and  "  liberty  "  prevented  the  state  of  New  York  from  regulating 

the  hours  which  bakers  might  be  employed.    And  it  should  be 

noted  that  it  is  the  application  of  the  restrictions  contained  in 

these  articles  which  has  aroused  the  most  severe  criticism  of  the 

1  The  Sixteenth  Amendment,  which  allows  Congress  to  levy  an  income  tax, 
without  apportionment  among  the  states,  enlarges  a  power  which  was  exercised 
previously  to  the  decision  of  the  court  in  1894. 


52      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Specific  dis- 
tribution of 
powers  be- 
tween the 
federal  gov- 
ernment, the 
states,  and 
the  people 


(i)  Powers 
granted  ex- 
clusively to 
the  federal 
government 


court.  Time  and  experience  have  shown  that  the  framers  of 
the  Constitution  were  wise  in  leaving  to  the  states  almost  com- 
plete control  over  the  social  relations  of  their  citizens.  For 
although  uniformity  was  sacrificed  and  the  danger  of  backward 
and  unwise  legislation  not  prevented,  the  rights  of  the  individual 
citizen  depended  upon  the  local  government  of  his  own  state, 
which  was  most  familiar  with  his  needs  and  more  easily  subject 
to  his  control.1 

The  Constitution  of  the  United  States  creates  a  federal  gov- 
ernment. It  provides  not  merely  for  the  organization  of  the 
national  government  but  it  presupposes  and  recognizes  the  exist- 
ence of  state  governments  which  have  very  definite  fuifctions 
and  far-reaching  powers.  The  Constitution  thus  divides  the  total 
power  of  a  sovereign  state  between  two  authorities,  the  state  and 
the  national,  and  defines  the  functions  of  oach  and  prevents  the 
one  from  encroaching  upon  the  other.  Furthermore,  since  the 
powers  which  the  national  government  rnJBkjjjrcfee  must;  be 
found  delegated  to  it  by  the  ConstitutionJJRKu^e  there  are 
very  definite  restrictions  placed  upon  the  sta^^Hpie  exercise 
of  certain  powers,  there  is  left  a  "neutral  zone^^r  sphere,  upon 
which  neither  the  states  nor  the  nation  can  encroach.  These 
rights  and  powers  are  those  reserved  to  the  people  in  their 
sovereign  capacity  and  can  only  be  exercised  by  means  of  a 
constitutional  amendment.2 

It  is  thus  possible,  as  Professor  F.  ].  Stimson  has  done,  to 
place  the  phrases  of  the  Constitution  into  certain  categories,  or 
classes.  Without  attempting  to  examine  in  detail  the  entire 
elaborate  classification  of  Professor  Stimson,  it  is  suggestive  to 
consider  some  of  his  categories.  The  first  class  would  include 
those  powers  granted  exclusively  to  the  government  of  the 

1  The  Eighteenth  Amendment,  adopted  in  1919,  prohibiting  the  manufacture 
or  sale  of  intoxicating  liquor  is  the  most  recent  and  from  some  points  of  view 
the  most  far-reaching  extension   of  the  federal  power  in  the  field  hitherto 
reserved  to  the  states.    It  should  be  remembered,  however,  that  this  extension 
was  the  result  not  of  congressional  action  but  of  constitutional  amendment. 

2  For  a  most  suggestive  and  detailed  treatment  of  this  topic,  see  F.  ].  Stimson's 
"Federal  and  State  Constitutions,"  chap,  iii,  and  "  The  American  Constitution." 
especially  chap,  iv,  also  the  frontispiece,  which  is  a  chart  showing  graphi- 
cally the  distribution  of  the  powers,  placing  each  clause  and  section  of  the 
Constitution  in  its  proper  category. 


CONSTITUTIONAL  PRINCIPLES  53 

United  States  and  also  expressly  prohibited  to  the  states.  This 
is  the  "  field  of  Centralization,  of  Imperialism  "  l  and  in  it  the 
government  of  the  United  States  is  exclusively  sovereign.  As 
has  been  said,  the  powers  thus  delegated  are  almost  all  political 
in  their  nature.  They  provide  for  the  organization  of  the  three 
departments  of  the  government  and  grant  to  each  very  definite 
powers.  These  specific  grants  will  be  examined  in  detail  in  later 
chapters,  but  it  is  to  be  noted  that  in  the  clauses  granting  the 
powers  to  each  department  are  to  be  found  phrases  capable  of 
expansion  by  interpretation.  Thus,  in  the  grant  to  the  legisla-  (a)  Legisla- 
tive department,  in  Article  I,  Sect,  viii,  clause  18,  is  found  the  tivepowers 
celebrated  elastic  clause  : 

The  Congress  shall  have  power  ...  to  make  all  laws  which  shall  be  [The  "Elastic 
necessary  and  proper  for  carrying  into  execution  the  foregoing  powers,   Clause"] 
and  all  other  powers  vested  by  this  Constitution  in  the  government  of 
the  United  States,  or  in  any  department  or  officer  thereof.. 

Moreover,  in  addition  to  this  clause  there  are  found  phrases  [commerce, 
in  the  same  section  which,  according  to  the  present  trend  of  and^tai7' 
interpretation  and  legislation,  extend  the  power  of  the  national  clauses] 
government  into  what  was  once  the  field  of  state  action.   Clause  3 
gives  Congress  the  right  to  regulate  the  commerce  between  the 
states  and  with  foreign  nations ;  clause  4,  the  right  to  establish 
uniform  laws  concerning  bankruptcies  throughout  the   United 
States ;    clause  7,  the   right  to  establish  post  roads  and  post 
offices.   The  fraud  orders  of  the  Post  Office  to  protect  investors, 
the  Pure  Food  Law,  and  the  far-reaching  activities  of  the  Inter- 
state Commerce  Commission  are  a  few  of  the  extensions  of  the 
federal  authority  under  these  clauses. 

In  like  manner  the  powers  granted  to  the  president  include  (&)  powers  of 
powers  which  at  times   have  enabled  him  to  overshadow  the  prej 
other  departments  of  the  government.    In  addition  it  must  be 
remembered  that  as  chief  executive,  charged  with  the  enforce- 
ment of  the  laws,  he  has  wide  discretionary  powers  which  even 
the  courts  will  not  question.    From  the  phrase  which  gives  to  (c)  Extension 
the   United   States   courts  the  jurisdiction   over  suits  between  diction  of  "he 
citizens  of  different  states  has  come  more  far-reaching  power  ^derai  courts 

1  F.  ].  Stimson,  The  American  Constitution,  p.  172. 


54      THE  GOVERNMENT  OF  THE  UNITED  STATES 

than  perhaps  was  contemplated  by  the  framers  when  state  lines 
were  more  frequently  boundaries  of  state  activities.  It  is  well 
to  bear  in  mind  in  this  connection  that  corporations  are  techni- 
cally citizens  of  the  state  in  which  they  are  incorporated,  and 
as  most  corporations  operate  in  more  than  the  state  of  their 
incorporation,  suits  to  which  they  are  parties  are  thus  frequently 
carried  to  the  United  States  courts.  Furthermore,  the  great 
increase  of  federal  legislation  is  constantly  bringing  more  and 
more  cases  formerly  settled  in  the  state  courts  before  the 
federal  courts. 

(a)  concur-  A  complete  analysis  of  the  Constitution  would  indicate  the 
powers  which  are  granted  to  the  federal  government  but  not 
prohibited  to  the  states  (like  the  great  power  of  ^taxation)  and 
those  powers  which  are  exercised  jointly  by  the  combined  action 
of  the  states  and  the  federal  government  (like  the^rotection 

(3)  Powers      of  a  state  in  time  of  domestic  violence)  ;   but  the  next  great 
tScfstates0      obvious   division    is   one   containing    those   powers   which   are 
fted  to°the"     reserved  to  the  states  and  prohibited  to  the  federal  government, 
united  states  These  most  truly  are  the  states'  rights  in  the  best  sense  of  the 

words.  The  states  exercise,  independently  of  the  United  States, 
the  right  to  jchoose  their  senators,  representatives,  and  presiden- 
tial electors,  while,  by  the  Eleventh  Amendment,  ajstate  cannot 
be  sued  by  private  individuals  without  its  consent.  The  broadest 
grant  of  states'  rights,  however,  is  found  in  the  Tenth  Amend- 
ment, whiclijreserves  to  the  states  or  to  the  people  all  powers 
not  granted  to  the  national  government  by  the  Constitution. 
Hardly  anything  could  be  more  comprehensive,  and  since  the 
states  are  sovereign  they  may  exercise  any  right  not  prohibited 
by  the  Constitution. 

(4)  Prohibi-         The  next   important   division    includes  those  powers  which 
states°n         are  forbidden  to  the  states.   These,  as  have  been  shown,  deal 

chiefly  with  the  political  organization  of  the  federal  government 
and  contain  certain  prohibitions  designed  to  insure  the  success- 
ful working  of  the  federal  system.  These  are  found  in  Article 
I,  Sect,  x,  and  in  Article  IV,  but  the  Fourteenth  Amendment, 
in  the  attempt  to  protect  the  negro,  invaded  the  domain  of 
states'  rights  by  prohibiting  the  infringement  of  the  so-called 
natural  rights  of  life,  liberty,  and  property  from  state  action. 


CONSTITUTIONAL  PRINCIPLES  55 

In  like  manner  the  United  States  government  is  forbidden  (5) 
to  do  many  things.    These  may  be  divided  into  prohibitions  federal the 
made  necessary  by  the  federal  system,  like  "no  State,  without  «overnment 
its  consent,  shall  be  deprived  of  its  equal  suffrage  in  the  Senate,"  1 
or   "no  preference  shall  be  given  by  any  regulation  of  com- 
merce or  revenue   to   the  ports  of   one   State  over   those   of 
another,"  2  prohibitions  upon  the  departments  of  the  government 
to  define  their  activities,  and,  finally,  very  fundamental  and  far- 
reaching  prohibitions  designed  to  protect  the  fundamental  rights 
of  the  citizen. 

Again,  there  is  to  be  found  a  zone  containing  prohibitions 
upon  both  the   United   States  and  the   states.    These  include 
the  (qualification  for  the  president,  senators,  and  representatives,  «overnments 
/their  method  of  election,  and  th^  protection  of  their  privileges ; 
also   the   far-reaching  Article  VI,    clause  2,  which   guarantees 
Ufederal   supremacy.    In   addition,   the    Thirteenth    Amendment 
£-- prohibits   slavery,   and   the   Fifteenth   guarantees  the£right   of 
suffrage  against  infringement  ""  on  account  of   race,  color,  or 
previous  condition  of  servitude." 

There  yet  remains  to  be  considered  what  powers  the  people  (7)  Powers 
have  reserved  to  themselves.  The  most  obvious  answer  would 
be,  all  powers  not  delegated  to  the  United  States  nor  forbidden 
to  the  states.  The  Constitution  goes  further,  however,  and  by 
express  words  and  necessary  implication  reserves  to  the  people, 
according  to  Professor  Stimson,  not  less  than  seventy-seven 
rights.3  Here  again  it  is  possible  to  find  distinctions  in  the 
kind  of  powers  reserved.  The  first  class  may  be  called  political, 
dealing  with  the  organization  of  the  government,  and  includes 
the  doctrine  of  the  separation  of  the  departments  of  govern- 
ment, which  grants  legislative  power  to  Congress,  executive 
power  to  the  president,  and  judicial  power  to  the  courts.  By  far 
the  greater  part  of  the  reservation  deals  with  the  fundamental 
rights  of  the  citizens,  with  the  protection  of  life,  liberty,  and 
property  which,  lying  in  the  neutral  zone,  can  only  be  touched 
by  a  constitutional  amendment. 

1  The  Constitution  of  the  United  States,  Article  V. 

2  Ibid.  Article  I,  Sect,  ix,  clause  6. 

3  F.  J.  Stimson,  The  American  Constitution,  p.  133. 


56      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  protec- 
tion of  per- 
sonal liberty 


The  protec- 
tion of 
property 


The  right  of  personal  liberty  is  protected  against  federal 
encroachment  by  the  Fifth  Amendment.1  It  is  also  protected 
against'  state  infringement  by  identical  words  to  be  found  in 
the  Fourteenth  Amendment.  Yet  more  particular  guaran- 
tees are  to  be  found.  Article  I,  Sect,  ix,  clauses  2,  3,  and 
8,  prohibit  the  suspension  of  the  great  writ  of  habeas  corpus, 
except  in  cases  of  rebellion  or  invasion,  prevent  the  passage  of 
ex  post  facto  laws  and  bills  of  attainder,  the  granting  of  any 
title  of  nobility  ;  Article  III,  Sect,  ii,  guarantees  jury  trial,  while 
Sect,  iii  defines  treason  and  the  penalties  for  it.  Amendments 
V,  VI,  VII,  and  VIII  reaffirm  the  right  of  jury  trial,  guarantee 
to  the  accused  the  privilege  of  counsel  and  witnesses,  and  pro- 
hibit excessive  bail  or  cruel  punishments.  In  addition  to  these, 
provisions  for  personal  liberty,  freedom  of  speech,  religion,  and 
assembly  are  found  in  the  First  Amendment ;  while  the  right  to 
bear  arms,  and  protection  against  the  quartering  of  troops  in  time 
of  peace,  are  secured  by  the  Second  and  Third  Amendments. 

Property  is  also  adequately  protected  against  both  the  state 
and  federal  governments.  There  are  in  Article  I  very  definite 
limitations  upon  the  taxing  power  of  the  federal  government : 
all  bills  for  raising  revenue  must  originate  in  the  House  of 
Representatives ;  all  duties,  imposts,  and  excises  must  be 
uniform  ;  direct  taxes  must  be  distributed  according  to  population  ; 
and  no  money  drawn  out. of  the  treasury  except  according  to 
law.  Among  the  powers  denied  to  the  states  are  provisions 
protecting  property  :  no  state  shall  coin*  money,  erriit  bills  of 
credit,  make  anything  but  gold,  or  silver  a  legal  tender  in  pay- 
ment of  debts,  nor  pass  any  law  impairing  the  obligation  of 
contracts.  Moreover,  the  limitation  in  Amendment  V  against 
the  federal  government  taking  property  for  public  use  without 
giving  compensation  prevents  confiscatory  legislation  and  seriously 
limits  the  right  of  the  government  to  acquire  property  by  eminent 
domain.  This  same  principle  is  applied  to  the  states  in  the  Four- 
teenth Amendment  in  the  words,  "  nor  shall  any  State  deprive  any 
person  of  ...  property  without  due  process  of  law,  nor  deny  to 
any  person  within  its  jurisdiction  the  equal  protection  of  the  laws." 


1  No  person  shall  be  deprived  of  "  Hfe,  liberty,  or  property  without  due 
process  of  law.  .  .  ."  —  The  Constitution  of  the  United  States 


CONSTITUTIONAL  PRINCIPLES  57 

Thus,   as    has  been  said,   the   Constitution  does  more  than  The  suprem- 
create  the  framework  of  the  government  and  distribute  the  func-  constitution 
tions  among  the  national  and  state  authorities  :  it  also  protects  S^cFtS^ 
the  citizen  in  his  most  fundamental  rights.    Since  the  Constitu-  in  his  furca- 
tion is  the  supreme  law  of  the  land,  the  courts  of  the  United 
States  are  the  agencies  by  which  the  laws  of  the  United  States 
are  enforced  and  the  citizen  protected  in  his  most  essential  right 
against  encroachment  by  either  the  United  States  or  the  states. 
Federal  supremacy  is  not  merely  the  power  of  the  federal  gov- 
ernment to  enforce  its  own  laws  but  also  the  power  to  protect 
its  citizens  in  these  great  natural  and  fundamental  rights  against 
all  attacks.  § 

FEDERAL  SUPREMACY1 

One  of  the  chief  causes  of  the  failure  of  the  Articles  of  Con-  Federal 
federation  was  the  lack  of  a  successful  assertion  of  the  sovereignty  soverefgnty 
of  Congress.  In  fact,  Congress  was  not  sovereign  ;  the  Confed- 
eration was  but  a  league  of  sovereign  states.  The  new  Consti- 
tution attempted  the  difficult  and  hitherto  impossible  task  of 
creating  a  federal  system  —  a  sovereign  state  composed  of  sover- 
eign states.  Actually  each  state  surrendered  'portions  of  its 
sovereignty  to  the  federal  government, '  and  thus  by  that  extent 
ceased  to  be  sovereign ;  while  the  federal  government  was  cre- 
ated of  delegated  powers,  but  possessed  of  full,  absolute,  and 
sovereign  authority  within  the  field  of  power  delegated  to  it. 
Thus  it  is  hardly  correct  to  speak  of  either  the  states  or  the 
federal  government  as  completely  sovereign,  for  both  depend 
upon  the  people  who  have  prohibited  the  states  to  exercise 
certain  powers  and  have  both  granted  and  limited  the  authority 
which  has  been  delegated  to  the  national  government.  Never- 
theless, within  the  sphere .  granted  to  it  by  the  Constitution  the 
national  government  is  supreme. 

This  supremacy  has  been  many  times  questioned  and  chal- 
lenged by  the  states,  but  never  successfully.  From  the  earliest 

1  This  Constitution  and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the  supreme  law  of  the  land ;  and  the 
judges  in  every  State  shall  be  bound  thereby,  anything  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding.  —  The  Constitution  of  the 
United  States,  Art.  VI,  clause  2 


58      THE  GOVERNMENT  OF  THE  UNITED  STATES 

Federal  years  of  the  government  under  the  Constitution  the  courts  have 
asserteTby  uniformly  upheld  the  federal  government  against  the  attempted 
agaSstnt  assertions  of  state  sovereignty  within  the  field  assigned  to  the 
states  national  government.1  For  example,  as  early  as  1793  the 

Supreme  Court  upheld  its  right  to  entertain  a  suit  against  a 
state  brought  by  a  citizen  of  another  state,  a  decision  which  pro- 
duced the  Eleventh  Amendment.2   In  1794  the  court  intimated 
that  it  would  disregard  a  state  law  which  conflicted  with  a  treaty, 
Against  state  and  in  the  succeeding  years  the  supremacy  of'  the  federal  law  was 
action  *"        asserted,  while  in  1 809,  in  the  case  of  United  States  v.  Peters?  the 
Supreme  Court,  in  sustaining  a  mandamus,  enforced  a  judgment 
of  the  federal  district  court  contrary  to  an  act  of  the  legislature  of 
Pennsylvania.  In  asserting  this  right  Chief  Justice  Marshall  said : 

If  the  legislatures  of  the  several  states  may,  at  will,  annul  the  judg- 
ments of  the  courts  of  the  United  States,  and  destroy  the  rights  acquired 
under  those  judgments,  the  Constitution  itself  becomes  a  solemn  mock- 
ery, and  the  nation  is  deprived  of  the  means  of  enforcing  its  laws  by 
the  instrumentality  of  its  own  tribunals. 

In  1810  and  1812  decisions  of  similar  character  were  ren- 
dered, and  in  1819,  in  McCulloch  v.  Maryland*  in  annulling  a 
state  law  the  doctrine  was  put  forth  that  a  state  cannot,  in  the 
exercise  of  its  powers,  interfere  with  the  operation  of  a  federal 
agency.  Thus  Marshall  reasoned  : 

The  states  have  no  power,  by  taxation  or  otherwise,  to  retard  or 
impede,  burden,  or  in  any  manner  control,  the  operation  of  constitutional 
laws  enacted  by  the  federal  government.  This  is,  we  think,  the  un- 
avoidable consequence  of  that  supremacy  the  Constitution  has  declared. 

Decision  of          In  maintaining  this  supremacy  the  court  in  1816  and  1821 

state  courts  ,     ,  .  -  .... 

subject  to  fed-  asserted  the  power  to  review,  on  writs  of  error,  decisions  of  state 
riew  courts  which  were  alleged  to  interfere  with  or  infringe  upon 
federal  rights.  Even  during  the  period  when  the  court  under 
Taney  favored  a  liberal  interpretation  of  the  powers  reserved  to 
the  states,  it  unhesitatingly  enforced  the  supremacy  of  the  federal 
authorities  in  the  exercise  of  duties  which  unquestionably  belonged 

1  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  I, 
pp.  iv,  v.  8  5  Cranch,  115,  136. 

2  Chisholm  v.  Georgia,  2  Dall.  419.  *  4  Wheat.  316. 

" 


CONSTITUTIONAL  PRINCIPLES  59 

to  the  federal  government.  In  the  case  of  Ableman  v.  Booth} 
in  1859,  where  the  highest  court  of  Wisconsin  had  released  a 
prisoner  sentenced  by  a  United  States  court  for  violation  of  the 
Fugitive  Slave  Law,  Taney  upheld  the  doctrine  of  federal 
supremacy  in  these  words  : 

No  state  judge  or  court,  after  they  are  judicially  informed  that  the  wo  state  judi- 
party  is  imprisoned  under  the  authority  of  the  United  States,  has  any 


rigljt  to  interfere  with  him,  or  require  him  to  be  brought  before  them.  w^th  federal 

And  if  the  authority  of  the  state,  in  the  form  of  judicial  process  or 

otherwise,  should  attempt  to  control  the  marshal  or  other  authorized 

officer  or  agent  of  the  United  States,  in  any  respect,  in  the  custody  of 

his  prisoner,  it  would  be  his  duty  to  resist  it,  and  to  call  to  his  aid  any 

force  that  might  be  necessary  to  maintain  the  authority  of  law  against 

illegal  interference. 

The  doctrine  of  federal  supremacy  was  thus  consistently  and  Thecmiwar 
peacefully  enforced  up  to  the  time  of  the  Civil  War.    The  pas-  o/fcSri86 
sage  of  the  various  ordinances  of  secession  was,   however,   a  suPremacy 
concerted  defiance,  of  this  doctrine.     Such  action  was  directly 
contrary  to  the  doctrine  which  had  been  hitherto  enforced  by  the 
court  and  stated  in  a  most   masterly  manner  by  Marshall  in 
these  words  : 

.  .  .  The  people  made  the  Constitution,  and  the  people  can  unmake 
it.  It  is  the  creature  of  their  will,  lives  only  by  their  will.  But  this 
supreme  and  irresistible  power  to  make  or  to  unmake,  resides  in  the 
whole  body  of  the  people,  not  in  any  subdivision  of  them.  The  attempt 
of  any  of  the  parts  to  exercise  it  is  usurpation,  and  ought  to  be  repelled 
by  those  to  whom  the  people  have  delegated  the  power  of  repelling  it.2 

Acting  in  the  spirit  of  these  words,  President  Lincoln,  in  his  Federal  right 
first  inaugural,  rightly  held  that  the  secession  ordinances  were 
illegal  and  void.    But  since  it  seemed  impossible  to  coerce  sover- 
eign states,  it  was  his  duty  not  to  make  war  upon  the  states  but 
to  obey  the  constitutional  injunction  laid  upon.  him  and  "take 
care  that  the  laws  be  faithfully  enforced."     In   so   doing  he 
utilized  force  not  against  states  as  such  but  against  rebellious 
individuals.     Legally  there  was  no  war  between  the  states  — 
although  circumstances  soon  compelled  the  observances  of  the 

1  21  How.  506,  524.  2  Cohens  v.  Virginia,  6  Wheat.  264,  389. 


60       THE  GOVERNMENT  OF  THE  UNITED  STATES 

rules  of  war  —  but  merely  the  utilization  of  force  sufficient  to 
maintain  the  federal  supremacy.  There  was  no  declaration  of 
war  by  Congress,  nor  was  there  a  treaty  made  at  the  close  of  the 
war,  but  the  Confederacy  collapsed  with  the  surrender  of  the 
various  generals  to  the  Union  forces. 

Since  the  Civil  War  the  supremacy  of  the  national  govern- 
ment has  not  been  defied.  Indeed,  the  utilization  of  the  power 
of  the  government  to  maintain  peace  within  the  various  states 
has  been  sanctioned  by  the  courts.  Thus,  in  ex  parte  Siebold^ 
it  was  said  : 

Federal  right        We  hold  it  to  be  an  incontrovertible  principle,  that  the  government 
order"11  °^  t^ie  United  States  may,  by  means  of  physical  force,  exercised  through 

its  official  agents,  execute  on  every  foot  of  American  soil  the  powers 
and  functions  that  belong  to  it.  This  necessarily  involves  the  power  to 
command  obedience  to  its  laws,  and  hence  the  power  to  keep  the  peace 
to  that  extent. 

In  1894,  in  the  Debs  case,  the  court  said,  "The  entire  strength 

of  the  nation  may  be  used  to  enforce  in  any  part  of  the  land  the 

full  and  free  exercise  of  all  national  powers  and  the  security  of 

all  rights  intrusted  by  the  Constitution  to  its  care."  2 

Federal  Thus,  although  the  enforcement  and  maintenance  of  federal 

courts  enforce  '-.11  *    •        i        i         t         r     i 

federal  supremacy  is  in  the  last  resort  in  the  hands  of  the  executive 


department  of  the  government,  the   determination  of  whether 
suits  this  supremacy  has  been  infringed  or  violated  is  a  judicial  ques- 

tion and  must  be  decided  by  the  courts  of  the  United  States. 
By  Article  III,  Sect,  ii,  of  the  Constitution  the  jurisdiction  of 
the  courts  is  defined  ;  in  some  cases  the  Supreme  Court  is  given 
original  jurisdiction,  in  others  appellate  jurisdiction,  under  such 
rules  and  regulations  as  Congress  shall  make.  Acting  upon  this, 
Congress,  in  the  great  judiciary  act  of  1789  3  and  in  the  subse- 
quent amendments,  has  made  it  possible  for  the  federal  courts 
to  take  jurisdiction  over  all  cases  in  which  a  federal  right  or  law 
has  been  construed  adversely  to  the  power  of  the  federal  gov- 
ernment, and,  by  means  of  appeals,  writs,  and.  other  judicial 
processes,  has  made  it  possible  for  the  court  to  protect  the 

1  ioo  U.S.  371,  395.  2  In  re  Debs,  158  U.  S.  564. 

3  See  pp.  63,  292  note. 


CONSTITUTIONAL  PRINCIPLES  6 1 

agents  of  the  national  government  against  interference  by  state 
tribunals  and  thus  to  enforce  the  rights  and  powers  granted  by 
the  Constitution  within  the  boundaries  of  the  states.  Thus  asser- 
tion of  federal  supremacy  is  a  judicial  question,  —  not  a  contest 
between  the  federal  government  and  the  government  of  a  state, 
but  a  judicial  determination  of  the  rights  claimed  by  a  citizen 
under  the  federal  Constitution. 

METHODS  OF  ASSERTION  OF  FEDERAL  SUPREMACY 

Federal  supremacy  is  maintained  in  several  ways.  First,  by  Appeal  to 
the  appellate  power  granted  to  the  Supreme  Court  by  the  Con-  federal  courts 
stitution  and  exercised  under  such  laws  as  Congress  shall  make. 
By  the  judiciary  act  of  1789  cases  may  be  carried  from  the  state 
courts  to  the  courts  of  the  United  States  upon  writs  of  error,  if 
the  judgment  of  the  state  court  has  been  against  a  federal  law 
or  right  or  if  the  state  court  has  upheld  a  state  law  or  right  con- 
trary to  a  claimed  federal  law  or  right.  This  clause  has  been 
seriously  questioned  only  three  times.  In  1816  the  court  of 
Virginia  denied  the  constitutionality  of  the  act,  but  was  overruled 
in  Martin  v.  Hunter's  Lessee}*  Again,  in  Cohens  v.  Virginia? 
Marshall  held  that  the  clause  did  not  contravene  the  Eleventh 
Amendment,  and  such  an  appeal  because  started  by  the  state 
was  not  a  suit  against  a  state.  Again,  in  1859,  Wisconsin  en- 
deavored, unsuccessfully,  to  resist  this  appellate  power  in  the 
attempt  to  render  void  the  Fugitive  Slave  Law,  but  the  right 
was  vindicated  by  Taney  in  the  case  of  Ableman  v.  Booth? 

A  second  way  in  which  federal  supremacy  is  maintained  is  by 
the  removal  of  a  case  from  the  courts  of  a.  state  to  the  federal 
courts.  This  right  has  been  invoked  to  protect  federal  officers  in 
the  exercise  of  their  duties.  The  principle  is  thus  set  forth  in 
Tennessee  v.  Davis .^  Davis,  a  revenue  officer,  in  the  exercise  of 
his  duties,  killed  a  man  and  was  arrested  by  the  authorities  of 
the  state.  When  his  case  came  to  trial  he  demanded  that  it  be 
removed  to  a  federal  court  under  the  authority  of  a  law  of  the  Removal  to 
United  States  authorizing  such  a  removal.  The  state  asserted 

1  i  Whfat.  304.  3  21  How.  506,  524. 

2  6  Wheat.  264,  389.  4  100  U.S.  257,  263. 


62      THE  GOVERNMENT  OF  THE  UNITED  STATES 

that  the  crime,  that  of  homicide,  was  not  one  against  the  federal 
but  against  the  state  laws.  This  was  of  course  admitted  by  the 
federal  authorities,  but  it  was  claimed  that  inasmuch  as  the  de- 
fendant was  a  federal  officer  who  was  performing  his  duties, 
the  case  should  go  before  the  federal  courts.  In  sustaining  this 
position  the  court  said  : 

Protection  It  [the  federal  government]  can  only  act  through  its  officers  and 

officers™1  agents,  and  they  must  act  within  the  states.  If,  when  thus  acting, 
and  within  the  scope  of  their  authority,  those  officers  can  be  arrested 
and  brought  to  trial  in  a  state  court,  for  an  alleged  offense  against  the 
law  of  the  state,  yet  warranted  by  the  federal  authority  they  possess, 
and  if  the  general  government  is  powerless  to  interfere  at  once  for  their 
protection,  —  if  their  protection  must  be  left  to  the  action  of  the  state 
court,  —  the  operations  of  the  general  government  may  at  any  time  be 
arrested  at  the  will  of  one  of  its  members. 

Not  only  may  the  federal  government  exercise  affirmative 
power  to  enforce  federal  law  and  rights,  but  the  state  courts  are 
prohibited  from  interfering  with  the  judicial  processes  of  the 
federal  courts.  This  was  firmly  established  in  1872  in  the  case 
of  United  States  v.  Tarble,1  where,  in  checking  an  attempt  of 
a  state  court  to  discharge  a  federal  prisoner  by  a  writ  of  habeas 
corpus,  the  court  used  the  following  words  : 

state  power-  Such  being  the  distinct  and  independent  character  of  the  two  gov- 
erai  prisoners  ernments,  within  their  respective  spheres  of  action,  it  follows  that  neither 
can  intrude  with  its  judicial  process  into  the  domain  of  the  other,  except 
so  far  as  such  intrusion  may  be  necessary  on  the  part  of  the  national 
government  to  preserve  its  rightful  supremacy  in  case  of  conflict  of  au- 
thority. In  their  laws,  and  mode  of  enforcement,  neither  is  responsible 
to  the  other.  .  .  .  State  judges  and  state  courts,  authorized  by  the 
laws  of  their  states  to  issue  writs  of  habeas  corpus,  have  undoubtedly 
a  right  to  issue  the  writ  in  any  case  where  a  party  is  alleged  to  be  ille- 
gally confined  within  their  limits,  unless  it  appear  upon  his  application 
that  he  is  confined  under  the  authority,  or  claim  and  color  of  the  au- 
thority, of  the  United  States,  by  an  officer  of  that  government.  If  such 
fact  appear  upon  the  application,  the  writ  should  be  refused. 

In  recent  years  the  United  States  courts  have  gone  even  fur- 
ther, and  have  themselves,  by  writs  of  habeas  qorpus,  removed 

1  13  Wall.  397,  407,  409. 


CONSTITUTIONAL  PRINCIPLES  63 

persons  charged  with  offenses  against  state  laws  from  the  custody  Habeascorpus 
of  the  officers  of  the  state.  This  power  is  derived  from  a  series  of 
statutes  beginning  with  the  judiciary  act  of  1789,  which  allowed 
the  use  of  the  writ  only  in  cases  where  the  persons  were  detained 
under  the  authority  of  the  United  States,  and  culminated  in  the 
amendment  of  1867,  whereby  the  writ  might  be  issued  in  all  cases 
where  any  person  might  be  restrained  in  violation  of  the  Con- 
stitution or  any  treaty  or  law  of  the  United  States.  The  most 
extreme  use  of  this  writ  was  seen  in  the  Neagle  case,  where  a 
deputy  marshal  who  had  committed  homicide  when  acting  ac- 
cording to  an  executive  order,  but  not  upon  the  authority  of  any 
statute,  was  transferred  from  the  jurisdiction  of  the  California 
officials  to  that  of  the  United  States.1 

Not  only  do  the  courts  by  these  means  maintain  the  inde-  Federal 
pendence  of  the  federal  agents  and  assert  the  supremacy  of 
federal  law,  but  all  federal  agencies  within  the  states  are  pro- 
tected  from  state  action  which  might  interfere  with  the  efficient  "by  the  states 
performance  of  their  functions.  One  of  the  earliest  assertions 
of  this  principle  was  in  the  celebrated  case  of  McCulloch  v. 
Maryland?1  The  state  of  Maryland  denied  the  constitutionality 
of  the  act  establishing  the  United  States  Bank  and  attempted 
to  tax  its  branches  operating  in  Maryland.  In  deciding  the  case 
adversely  to  the  state,  Marshall  used  the  following  reasoning : 

That  the  power  to  tax  involves  the  power  to  destroy  ;  that  the  power  Protected 
to  destroy  may  defeat  and  render  useless  the  power  to  create;    that  tion  by  states 
there  is  a  plain  repugnance  in  conferring  on  one  government  a  power  Jj^jj.  ^r 
to  control  the  constitutional  measures  of  another,  which  other,  with  efficiency 
respect  to  those  very  measures,  is  declared  to  be  supreme  over  that 
which  exerts  the  control,  are  propositions  not  to  be  denied.    • 

If  the  states  may  tax  one  instrument,  employed  by  the  government 
in  the  execution  of  its  powers,  they  may  tax  any  and  every  other  in- 
strument. They  may  tax  the  mail ;  they  may  tax  the  mint ;  they  may 
tax  patent  rights;  they  may  tax  papers  of  the  customhouse;  they 
may  tax  judicial  process ;  they  may  tax  all  the  means  employed  by 
the  government,  to  an  excess  which  would  defeat  all  the  ends  of 
government.  This  was  not  intended  by  the  American  people.  They 
did  not  design  to  make  their  government  dependent  on  the  states. 


1  See  pp.  178-179.  2  4  Wheat.  316. 


64      THE  GOVERNMENT  OF  THE  UNITED  STATES 

This  decision,  however,  does  not  prevent  the  taxation  of 
federal  agencies  whose  efficiency  was  not  interfered  with  by 
such  taxation.  The  following  rule  was  laid  down  in  National 
Bank  v.  Commonwealth)- 

Present  rule  It  certainly  cannot  be  maintained  that  banks  or  other  corporations 
state'taxf-  or  instrumentalities  of  the  government  are  to  be  wholly  withdrawn 
tion  of  from  the  operation  of  state  legislation.  The  most  important  agencies 

federal  instru-     r    ,       ,    ,       ,  ~  ,  ...  ,    . 

mentalities  of  the  federal  government  are  its  officers,  but  no  one  will  contend  that 
when  a  man  becomes  an  officer  of  the  government  he  ceases  to  be 
subject  to  the  laws  of  the  state.  The  principle  we  are  discussing  has 
its  limitation,  a  limitation  growing  out  of  the  necessity  on  which  the 
principle  itself  is  founded.  That  limitation  is  that  the  agencies  of  the 
federal  government  are  only  exempted  from  state  legislation  so  far  as 
the  legislation  may  interfere  with  or  impair  their  efficiency  in  performing 
the  functions  by  which  they  are  designed  to  serve  that  government. 

In  like  manner  Congress  may  by  statute  allow  the  state  to  tax 
federal  property  of  certain  kinds ;  for  example,  by  the  act  of 
1894  the  notes  of  national  banks  may  be  so  taxed,  but  such 
taxation  must  be  in  accord  with  congressional  legislation  and 
form  an  exception  to  the  general  rules. 

Conversely,  it  was  held  in  Collector  v.  Day  2  that  the  federal 
government  could  not  levy  an  income  tax  upon  the  salaries  of 
state  officials.  The  reasoning  laid  down  a  principle  which  has 
been  generally  followed : 

Conversely,  And  if  the  means  and  instrumentalities  employed  by  that  govern- 
not  tax^tate  ment  to  carry  into  operation  the  powers  granted  to  it  are,  necessarily, 
instrumen-  anc[  for  the  sake  of  self-preservation,  exempt  from  taxation  by  the 

t3.li.tics  of 

government  states,  why  are  not  those  of  the  states  depending  upon  their  reserved 
powers,  for  like  reasons,  equally  exempt  from  federal  taxation  ?  Their 
unimpaired  existence  in  the  one  case  is  as  essential  as  in  the  other.  It 
is  admitted  that  there  is  no  express  provision  in  the  Constitution  that 
prohibits  the  general  government  from  taxing  the  means  and  instru- 
mentalities of  the  states,  nor  is  there  any  prohibiting  the  states  from 
taxing  the  means  and  instrumentalities  of  that  government.  In  both 
cases  the  exemption  rests  upon  necessary  implication  and  is  upheld  by 
the  great  law  of  self-preservation ;  as  any  government,  whose  means 
employed  in  conducting  its  operations,  if  subject  to  the  control  of 


1  9  Wall.  353,  361-362.  2  ii  Wall.  113,  127. 


CONSTITUTIONAL  PRINCIPLES  65 

• 

)ther  and  distinct  government,  can  exist -only  at  the  mercy  of  that 
government.  Of  what  avail  are  these  means  if  another  power  may  tax 
at  discretion  ? 

Among  the  guarantees  of  the  Constitution  to  the  states  are  a 
republican  government  and  protection  against  domestic  violence. 
The  term  "  republican  form  of  government  "  has  been  interpreted 
to  mean  such  a  form  of  government  as  existed  in  the  states  at 
the  time  of  the  adoption  of  the  Constitution  —  one  in  which  the 
officers  of  the  state  were  responsible  to  the  people  and  selected 
by  them.  Such  a  definition,  it  has  been  held,  was  not  violated 
by  denying  the  suffrage  to  women,1  since  in  all  the  states  the 
suffrage  was  restricted,  and  only  in  New  Jersey  was  it  granted  to 
women.  Nor,  according  to  the  decision  of  the  New  York  court,  is 
it  violated  by  the  use  of  the  referendum,  in  which  a  democratic 
rather  than  a  representative  system  is  followed.2  In  1912  the 
Supreme  Court  refused  to  pass  upon  a  case  involving  the  use  of 
initiative  and  referendum,  holding  that  it  was  a  political  rather  than 
a  judicial  question.  The  case  is  so  important  that  the  following 
portion  of  the  reasoning  of  Justice  White  may  be  noted : 

Do  the  provisions  of  Sect,  iv,  Article  IV,  bring  about  these  strange, 
far-reaching,  and  injurious  results  ?  That  is  to  say,  do  the  provisions  of 
that  Article  obliterate  the  division  between  judicial  authority  and  legis- 
lative power  upon  which  the  Constitution  rests  ?  In  other  words,  do 
they  authorize  the  judiciary  to  substitute  its  judgment  as  to  a  matter 
purely  political  for  the  judgment  of  Congress  on  a  subject  committed 
to  it  and  thus  overthrow  the  Constitution  upon  the  ground  that  thereby 
the  guarantee  to  the  states  of  a  government  republican  in  form  may 
be  secured,  a  conception  which  after  all  rests  upon  the  assumption  that 
the  states  are  to  be  guaranteed  a  government  republican  in  form  by 
destroying  the  very  existence  of  a  government  republican  in  form 
in  the  nation  ? 

We  shall  not  stop  to  consider  the  text  to  point  out  how  absolutely 
barren  it  is  of  support  for  the  contentions  sought  to  be  based  upon  it, 
since  the  repugnancy  of  those  contentions  to  the  letter  and  spirit  of 
that  text  is  so  conclusively  established  by  prior  decisions  of  this  court 
as  to  cause  the  matter  to  be  absolutely  foreclosed.8 

1  Minor  v.  Happersett,  21  Wall.  162. 

2  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  I,  p.  1 54. 
8  Pacific  States  Telegraph  and  Telephone  Co.  v.  Oregon,  223  U.  S.  118,  142,  143. 


66      THE  GOVERNMENT  OF  THE  UNITED  STATES 

• 

To  protect  the  states  against  domestic  violence  Congress  has 
3~  given  the  president  certain  powers.    In  the  exercise  of  these 
>r!t  Powers  the  president  is  called  upon  to  use  his  discretion  as  to 
the  which  of  the  contending  parties  he  considers  the  lawful  govern- 
ment.   In  the  case  of  Ltither  v.  Borden J  the  court  held  that 
this  was  an  executive  act  and  not  reviewable  by  the  court. 

At  the  close  of  the  Civil  War  the  courts  construed  the  clause 
guaranteeing  a  republican  government  in  such  a  manner  as 
to  authorize  Congress  to  establish  and  maintain  governments 
within  the  states  which  had  seceded.  In  so  doing,  perhaps  from 
the  necessities  of  the  situation,  what  were  practically  military 
governments  were  set  up  until  the  states  had  complied  with 
certain  conditions  laid  down  by  Congress. 

Lastly,  the  Fourteenth  Amendment,  which  forbids  any  state  to 
deprive  any  person  of  life,  liberty,  or  property  without  due  process 
of  law  or  to  deny  to  any  person  the  equal  protection  of  the  laws, 
has  vastly  extended  the  sphere  of  federal  supremacy.   Although 
by  the  Slaughter  House  Cases  2  it  was  held  that  a  citizen  gained 
no   new   rights   which   the  courts  could   enforce,   and   by  the 
u-     decision  in  the  Civil  Rights  Cases  3  it  was  held  that  the  provisions 
£ate  of  this  amendment  did  not  give  Congress  the  right  to  provide 
tete  penalties  for  the  violation  of  the  rights  of  citizens  by  private 
aai    persons,  the  amendment  has  greatly  extended  the  jurisdiction  of 
the  courts.    They  may  take  cognizance  of  and  review  cases  in 
which  "  due  process  "  is  not  followed  or  equal  protection  of  the 
laws  not  given.    Federal  supremacy  is  thus  asserted  and  limita- 
tions placed  upon  the  states,  and  federal  judges  can  enforce  their 
conception  of  justice  by  granting  relief  from  the  laws  of  the  states 
which  run  counter  to  this  conception. 

Thus,  although  the  states  are  sovereign  within  the  sphere 
ie    not  granted  to  the  federal  government,  the  limits  of  this  sphere 
1     are  determined  not  by  the  states  but  by  the  federal  government. 
Even  more,  the  guarantees  which  the  Constitution  gives  to  certain 
rights  —  perhaps  few  in  number  but  of  fundamental  importance  — 
are  supported  and  maintained  in  the  last  resort  by  the  federal  courts 
and  the  federal  authorities  whose  decision,  if  necessity  arises,  may 
be  enforced  by  the  military  power  of  the  government. 

1  7  How.  i.  2  See  pp.  75,  76,  77.  3  109  U.  S.  3. 


CONSTITUTIONAL  PRINCIPLES  6 

SEPARATION  OF  POWERS 

In  the  eyes  of  the  colonists  the  English  constitution  exerr 
plified  the  theory  of  the  separation  of  powers.  The  long  struggl 
of  Parliament  with  the  Crown  had  ended  in  the  independenc 
if  not  in  the  triumph  of  the  legislature.  The  Bill  of  Right 
had  placed  the  judiciary  beyond  the  reach  of  royal  interference 
The  prerogatives  of  the  Crown,  greater  in  theory  than  in  actus 
practice,  seemed  to  secure  to  the  executive  a  wide  field  of  actio: 
free  from  the  interference  of  either  of  the  other  departments 
The  cabinet  system  was  not  fully  developed,  and  thus  to  distan 
observers  it  might  fairly  appear  that  in  England  alone  of  a' 
the  states  of  Europe  there  was  a  genuine  separation  of  the  deparl 
ments  of  government.  This  observation  was  strengthened  by  th 
teachings  of  the  theoretical  writers  who  unhesitatingly  laid  dowi 
the  rule  that  such  a  separation  was  necessary  to  liberty. 

When  the  legislative  and  executive  powers  are  united  ii 
re  same  person,  or  in  the  §ame  body  of  magistrates,"  sail 
Montesquieu,  "there  can  oe  no  liberty;  because  apprehension 
arise  lest  the  same  monarch  or  senate  should  enact  tyran. 
lical  laws,  to  execute  them  in  a  tyrannical  manner."    And  again 
"  There   is   no  liberty  if  the  judiciary  power  be  not  separate* 
from  the  legislative  and  executive.    Were  it  joined  with   thi 
legislative,  the  life  and  liberty  of  the  subject  would  be  expose( 
arbitrary  control,  for  the  judge  would  be  then  the  legislator 
/ere  it  joined  to  the  executive  power,  the  judge  might  behav< 
dth  violence  and~oppression."  l    This  opinion  of  the  philosophe: 
is  also  held  by  the  great  English  commentator  Blackstone 
who  said,  "  In  all  tyrannical  governments,  the  supreme  magis 
icy,  or  the  right  both  of  "making  and  of  eftforcing  the  laws,  \\ 
vested  in  one  and  the  same  man  or  one  and  the  same  bodj 
of  men ;  and  wherever  these  two  powers  are  united  together 
lere  can  be  no  public  liberty."  2 

Experience,  moreover,  had  accustomed  the  colonists  to  the 
practical  advantages  of  this  theory.  Every  colony  had  ar 
executive  appointed  or  elected,  but,  whether  appointed  or  elected 

1  Spirit  of  Laws,  Bk.  XI,  chap,  vi,  W.  T.  Nugent,  translator. 

2  Blackstone,  Commentaries,  Bk.  I,  chap,  ii,  p.  146. 


68      THE  GOVERNMENT  OF  THE  UNITED  STATES 

he  was  not  responsible  to  the  legislative  body.  The  independ- 
ence of  the  executive  was  less  evident  in  Connecticut  and 
Rhode  Island,  where  he  seemed  to  be  little  more  than  the 
agent  of  the  assembly,  but  it  reached  its  highest  point  in 
the  royal  provinces,  where  he  possessed  very  substantial  pre- 
rogatives. The  judges  were  commissioned  by  the  Crown,  irre- 
movable alike  by  the  governor  or  the  legislature.  And  in  every 
colony  there  were  legislative  assemblies  with  such  wide  powers 
that  they  were  often  enabled  to  encroach  upon  the  other 
departments  of  the  government. 

ed  During  the  revolutionary  era  this  principle  reappeared  in  six 
as  of  the  newly  formed  state  constitutions,  varying  from  the  brief 
declaration  of  Maryland—  "That  the  legislative,  executive,  and 
judicial  powers  of  government  ought  to  be  forever  separate 
and  distinct  from  each  other" — to  the  elaborate  and  sonorous 
article  in  the  Massachusetts  Bill  of  Rights  : 

In  the  government  of  this  commonwealth,  the  legislative  department 
shall  never  exercise  the  executive  and  judicial  powers,  or  either  of 
them  :  the  executive  shall  never  exercise  the  legislative  and  judicial 
powers,  or  either  of  them :  the  judicial  shall  never  exercise  the  legisla- 
tive and  executive  powers,  or  either  of  them,  to  the  end  it  may  be  a 
government  of  laws  and  not  of  men. 

Under  the  Articles  of  Confederation,  however,  this  idea  was 
:s  abandoned,  and  Congress  in  itself  possessed  all  the  legislative, 
lon,  judicial,  and  executive  power  which  the  jealousy  of  the  states 
would  grant  to  the  central  government.    So  weak  did  the  Con- 
federation prove  that  not  tyranny  but  inefficiency  resulted  from 
this  mingling.    Hence  it  was  not  surprising  that  a   resolution 
was  adopted  in  the  early  days  of  the  Constitutional  Convention 
declaring  "  That  a  national  government  ought  to  be  established 
consisting  of  a  supreme  legislative,  executive,  and  judiciary." 
In  the  final  draft  of  the  Constitution  there  is  no  such  definite 
statement  of  the  principle  as  is  found  in  the  constitution  of 
>f    Massachusetts,  but  in  the  description  of  the  departments  the 
i    theory  is  plainly  shown.    Thus  :  "  All  legislative  powers  herein 
*~  granted  shall  be  vested  in  a   Congress  of  the   United   States 
.  .-  .  ,"  l  and  "  The  executive  power  shall  be  vested  in  a  President 

1  The  Constitution  of  the  United  States,  Article  I,  Sect.  i. 


i*         .  t  T   T 


CONSTITUTIONAL  PRINCIPLES  69 


of  the  United  States  of  America,"1  and  "The  judicial  power 
of  the  United  States,  shall  be  vested  in  one  Supreme  Court,  and 
in  such  inferior  courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish,"2  imply  adherence  to  the  principle. 

The  Constitution  attempts  to  render  each  of  these  departments  (i)  The  . 
independent  of  the  others  in  various  ways.  The  president,  con-  pre£ 
trary  to  the  early  expressed  wish  of  the  majority  of  the  conven- 
tion, is  chosen  not  by  Congress  but  indirectly  by  the  people  of 
the  states.  He  is  irremovable  except  by  impeachment,  and  holds 
office  for  four  years,  a  period  of  different  length  from  the  repre- 
sentatives, senators,  and  judges.  Only  in  the  case  of  the  failure  (a)  congress 
of  the  states  to  give  a  majority  of  electoral  votes  to  any  one 
candidate  can  Congress  act,  but  custom  and  legislation  have 
given  to  that  body  the  power  to  pass  upon  the  electoral  vote  of 
the  states.  In  like  manner  the  members  of  the  two  Houses  of 
Congress  are  chosen  by  a  different  process  and  for  different 
terms  from  the  president  and  the  judges.  Still  further  to  pro- 
tect its  independence  each  House  is  made  the  final  judge  of  its 
own  membership  and  can  discipline  its  own  members,  who  are 
furthermore  protected  and  rendered  free  from  arrest,  except  for 
serious  crimes,  and  cannot  be  held  liable  for  words  spoken  or 
printed  by  them  as  members.  The  judges  of  the  United  States  (3)  The 

,      .      ,  ,  -    ,        ,       .  ,  ~  ,  judiciary 

are  made  independent  of  the  legislature  and  executive  alike  by  a 
fixed  term  of  office  —  life ;  they  are  subject  only  to  removal  by 
impeachment ;  and  they  are  given  a  compensation  which  cannot 
be  diminished  during  their  term  of  office. 

The  interpretation  given  by  the  courts  to  these  provisions  has 
given  legal  force  to  the  political  theory.  Thus,  in  Kilborn  v. 
Thompson?  in  deciding  that  the  House  of  Representatives  had 
no  authority  to  punish  a  witness  for  refusing  to  testify  concerning 
his  private  affairs,  the  court  applied  the  doctrine  m  these  words : 

It  is  believed  to  be  one  of  the  chief  merits  of  the  American  system  separation 
of  written  constitutional  law  that  all  the  powers  intrusted  to  govern-  ^terpreted18 
ment,  whether  state  or  national,   are  divided    into   the  three  grand  t>y  the  courts 
departments  —  the  executive,  the  legislative,  and  the  judicial;  that  the 

1  The  Constitution  of  the  United  States,  Article  II,  Sect.  i. 

2  Ibid.  Article  III,  Sect,  i,  clause  i. 
8  103  U.  S.  1 68,  190. 


70      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Exceptions: 


(i)  The  presi- 
dent in  rela- 
tion to 

Congress  and 
the  courts 


(a)  Legisla- 
tive control 
over  the 
executive 
and  judicial 
departments 


functions  appropriate  to  each  of  these  branches  of  government  shall  be 
vested  in  a  separate  body  of  public  servants ;  and  that  the  perfection 
of  the  system  requires  that  the  lines  which  separate  and  divide  these 
departments  shall  be  broadly  and  clearly  defined.  It  is  also  essential  to 
the  successful  working  of  this  system  that  the  persons  intrusted  with 
power  in  any  one  of  these  branches  shall  not  be  permitted  to  encroach 
upon  the  powers  confided  to  the  others,  but  that  each  shall  by  the  law 
of  its  creation  be  limited  to  the  exercise  of  the  powers  appropriate  to 
its  own  department  and  no  other.  To  these  general  propositions  there 
are  in  the  Constitution  of  the  United  States  some  important  exceptions. 

Yet  this  division  of  powers,  so  clearly  expressed,  has,  as  the 
court  observed,  certain  notable  exceptions.  The  president  is 
a  part  of  the  legislature.  Not  only  must  his  assent  be  given 
to  every  act  of  Congress,  unless  two  thirds  override  his  veto, 
but  he  is  directed  to  give  information  to  Congress.  To  what 
extent  the  president  thus  becomes  a  legislative  leader  will  be 
later  discussed,1  but  Professor  Ford  points  out  that  rarely  has 
Congress  been  able  to  thwart  the  strongly  expressed  desire  of 
an  executive.  Certainly  under  the  pressure  of  war  this  is  true, 
as  the  second  administration  of  Wilson  showed.  In  like  manner 
the  president  may  encroach  upon  the  function  of  the  judiciary. 
Not  only  does  he,  with  the  advice  and  consent  of  the  Senate, 
appoint  the  judges  but  he  exercises  a  quasi-judicial  power  of 
pardon,  and  through  his  appointed  officers,  the  United  States 
attorneys,  initiates  all  prosecutions. 

So,  too,  the  legislature  may  encroach  upon  both  the  executive 
and  judicial  departments.  All  important  officers  are  appointed  by 
the  president,  with  the  advice  and  consent  of  the  Senate,  and 
the  Senate's  approval  is  necessary  for  the  ratification  of  every 
treaty,  while  for  most  international  agreements  further  congres- 
sional action  is  required.  As  will  be  shown,  many  of  the  powers 
which  the  president  exercises  are  the  result  of  congressional 
legislation,  which,  although  extending  the  power  of  the  president, 
may  at  some  subsequent  time,  by  repeal,  withdraw  the  power 
granted.  Over  the  courts  Congress  exercises  more  power  than  is 
realized.  The  Constitution  provides  for  the  creation  of  but  one 
court,  the  Supreme  Court,  and  even  here  leaves  to  Congress  the 

1  See  pp.  168-174;  368-373. 


CONSTITUTIONAL  PRINCIPLES  71 

power  to  determine  the  number  and  compensation  of  the  judges. 
Still  more  significant  is  the  fact  that  the  appellate  jurisdiction 
of  the  Supreme  Court  is  dependent  to  a  large  extent  upon 
congressional  action.  Hence  it  is  within  the  possible  power 
of  Congress  to  interfere  very  seriously  with  the  independent 
operation  of  the  court. 

The  court  itself,  in  maintaining  the  supremacy  of  the  Consti-  (3)  The  su- 
tution  and  of  the  federal  law,  quite  frequently  interferes  with  the  the^ourtf 
other  departments,  executive  and  legislative  alike,  by  refusing  to 
give  effect  to  the  acts  of  Congress  or  by  granting  relief  from  the 
acts  of  officials ;  and  the  unfriendly  critics  of  the  courts,  and  even 
some  of  the  judges,  have  held  that  by  interpretation  the  courts  are 
exercising  judicial  power  to  such  an  extent  that  the  charge  of  judi- 
cial legislation  is  justified.    It  must  be  remembered,  however,  that 
such  action  of  the  courts  is  Jiot  legislative  in  its  origin  but  merely 
the  judicial  assertion  of  the  principles  of  the  Constitution. 

In  minor  ways  each  department  exercises  all  the'  powers  of  the  Minor  ezcep- 
others.  The  judges  have  some  independent  appointing  power, 
and  some  legislative  power  in  making  rules  for  procedure.  The 
executive  exercises  a  quasi-legislative  power  in  the  making  of 
administrative  regulations  and  considerable  judicial  power  in  en- 
forcing them  both  with  and  without  appeal  to  the  courts.  The  legis- 
lative appoints  its  own  officers  and  participates  in  the  appointment 
of  others,  disciplines  its  own  members,  and,  under  certain  circum- 
stances, may  punish  outsiders  for  contempt  of  its  authority. 

What  then  becomes  of  the  theory  of  the  separation  of  the 
departments  ?    The  real  principle  has  thus  been  stated  : 

.  .  .  The  correct  statement  is  that  a  department  may  constitutionally  True  state- 
exercise  any  power,  whatever  its  essential  nature,  which  has,  by  the  {£eory°of  the 
Constitution,  been  delegated  to  it,  but  that  it  may  not  exercise  powers         rtion  of 
not  so  constitutionally  granted,  which  from  their  essential  nature  do  not 
fall  within  its  division  of  governmental  functions,  unless  such  powers  are 
properly  incidental  to  the  performance  by  it  of  its  own  appropriate  func- 
tions. .  .  .  Generally  speaking  it  may  be  said  that  where  a  power  is  not 
peculiarly  and  distinctively  legislative,  executive,  or  judicial,  it  lies  in  the 
authority  of  the  legislature  to  determine  where  its  exercise  shall  be  vested.1 

1  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  II, 
pp.  1263,  1264. 


72      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  fact  that  each  of  the  departments  of  the  government  may 
at  times  and  under  certain  circumstances  appear  to  encroach 
upon  the  prerogatives  of  one,  if  not  upon  both,  of  the  other 
'departments  has  led  to  the  most  emphatic  statements  of  the 
theory  of  separation  of  powers.  These  statements,  however, 
made  in  the  heat  of  political  conflict,  are  rather  to  be  considered 
as  attempts  to  gain  supporters  than  as  serious  charges  of  breaches 
of  our  constitutional  system. 

Jefferson's  Thus  the  expansion  which  the  Constitution  received  by  the 
interpretation  the  Federalist  Chief  Justice  Marshall  put  upon  it 
enraged  Jefferson  and  led  him  to  make  violent  denunciations. 
"  .  .  .  If,"  he  wrote,  "the  judiciary  is  the  last  resort  in  relation 
to  the  other  departments  of  the  government,  .  .  .  then  indeed 
is  our  Constitution  a  complete  felo-de-se.  For  intending  to 
establish  three  departments,  coordinate  and  independent,  that 
they  might  check  and  balance  one  another,  it  has  given,  according 
to  this  opinion,  to  one  of  them  alone,  the  right  to  prescribe 
rules  for  the  government  of  the  others,  and  to  that  one  too 
which  is  unelected  by,  and  independent  of,  the  nation."  1  In 
recent  times,  as  well,  the  charge  has  been  made  that  the  court  is 
encroaching  upon  the  legislative  branch  of  the  government,  and 
by  judicial  legislation  was  accomplishing  what  Congress  never 
intended.  This  view  found  some  support  in  the  court  itself, 
when  Justice  Harlan  dissented  from  the  opinion  rendered  in  the 
Standard  Oil  case  in  these  words  : 

They  [the  courts]  have  no  function  to  declare  a  public  policy,  nor  to 
amend  legislative  enactments.  .  .  .  Nevertheless,  if  I  do  not  misapprehend 
its  opinion,  the  court  has  now  read  into  the  act  of  Congress  words  which 
are  not  to  be  found  there,  and  has  thereby  done  that  which  it  adjudged 
in  1896  and  1898  could  not  be  done  without  violating  the  Constitution  ; 
namely,  by  interpretation  of  a  statute  changed  a  public  policy  declared 
by  the  legislative  department.2 

Encroach-  During  the  administration  of  Andrew  Johnson,  when  the  vic- 

torious  Republicans  were  attempting  to  enforce  their  ideas  of  re- 
construction of  the  governments  of  the  Southern  states,  Congress 

1  Letter   to   Judge    Spencer   Roane,   September  6,   1819,  in  "Writings  of 
Thomas  Jefferson"  (P.  L.  Ford,  ed.),  Vol.  X,  p.  140. 

2  Standard  Oil  Co.  v.  United  States,  221  U.S.  I,  104. 


Harian 

ju^cT 
lation 


CONSTITUTIONAL  PRINCIPLES  73 

assumed  a  predominant  place  in  the  government.  The  Tenure 
of  Office  Act  was  but  one  of  the  encroachments  of  that  epoch, 
but  the  very  violence  of  Johnson's  denunciations  of  this  meas- 
ure alienated  some  who  might  have  joined  in  criticizing  such 
congressional  usurpation. 

In  recent  years  the  executive  department  has  come  to  the  Extension  of 
fore.  Both  President  Roosevelt  and  President  Wilson  have  ex-  the  executive 
tended  certain  powers  to  the  utmost,  not  merely  in  the  pre- 
scribed constitutional  methods  but  in  ways  which,  while  legal, 
were  hardly  contemplated  by  the  framers.  Appeals  have  been 
made  to  the  people,  and  the  whole  power  of  the  president  as  a 
party  leader  has  been  utilized  to  force  Congress  to  pass  desired 
legislation.  This  has  not  gone  unrebuked.  During  Roosevelt's 
administration  members  of  both  parties  accused  him  of  executive 
usurpation.  Since  the  United  States  entered  the  war  vast  powers 
have  been  added  to  the  president's  already  rather  undefinable  war 
power.  Even  this  great  power  has  been  extended  by  congressional 
legislation,  so  that  there  is  little  wonder  that  President  Wilson's 
political  opponents  raise  the  cry  of  executive  usurpation. 

But,  as  has  been  said,  these  attacks  are  made  usually  by  the 
,  parties  aggrieved,  not  so  much  because  of  a  breach  of  the  theory 
of  the  separation  of  departments  as  because  of  the  fact  that  they 
themselves  are  not  the  beneficiaries.  Each  department,  accord- 
ing to  its  critics,  has  been  guilty  of  such  usurpation,  but  it  is 
equally  true  that  each  department  has  not  hesitated  to  extend 
its  functions  when  necessity  seemed  to  demand  it.  At  different  Explanation 
times  -public  attention  has  been  focused  upon  different  depart- 
ments and  public  opinion  has  functioned  through  them.  At 
such  times  the  department  which  best  serves  the  interest  of  the 
people  and  possesses  their  confidence  receives  added  extra-legal 
duties  and  powers.  Its  field  of  activity  is  extended  at  the  ex- 
pense of  the  other  departments,  and  although  it  may  be  criticized 
by  them  it  can  rest  assured  of  popular  approval  and  support. 

CITIZENSHIP  AND  INTERSTATE  RELATIONS 

As  has  been  shown,  the  Constitution  of  the  United  States 
is  one  of  delegated  powers.  It  creates  a  national  government 
sovereign  within  the  sphere  granted  for  its  action,  but  it  also 


74      THE  GOVERNMENT  OF  THE  UNITED  STATES 

% 

Double  citi-  recognizes  and  provides  for  other  authorities  operating  with 
the 'united  equal  sovereignty  within  their  own  spheres.  The  people  of  the 
United  States  are  thus  subject  to  two  separate  and  different 
jurisdictions,  and  from  each  are  derived  certain  rights  and  privi- 
leges. Two  distinct  citizenships  are  thus  created  —  state  and 
national.  In  the  original  and  unamended  Constitution  this  was 
recognized  in  the  clauses  which  provided  that  the  president 
must  be  either  a  natural-born  citizen  or  a  citizen  of  the  United 
States1  and  in  giving  to  the  citizens  of  each  state  all  the  privi- 
leges and  immunities  of  citizens  in  the  several  states.2  Hence, 
it  becomes  necessary  to  determine  who  are  the  citizens  of  the 
states  and  who  are  citizens  of  the  United  States,  and  what 
immunities  and  privileges  attach  to  each  kind  of  citizenship. 

The  problem  was  made  more  definite  and  simplified  by  the 
adoption  of  the  Fourteenth  Amendment,  which  declared : 

AS  defined  by        All  persons  born  or  naturalized  in  the  United  States,  and  subject  to 

teenthUI         the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the 

Amendment     State  wherein  they  reside.    No  State  shall  make  or  enforce  any  law 

which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 

States ;  nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property 

without  due  process  of  law ;  nor  deny  to  any  person  within  its  jurisdiction 

the  equal  protection  of  the  laws. 

This  defines  federal  or  United  States  citizenship,  and  certain 
rights  and  immunities  and  privileges  are  specified  as  attaching 
to  it  which  are  beyond  the  power  of  the  states  to  touch. 

Four  questions  are  thus  presented  for  consideration,  which,  if 
answered  in  the  following  order,  will  clarify  the  subject :  (i)  Who 
were  the  citizens  of  the  United  States  before  the  adoption  of 
the  Fourteenth  Amendment  ?  (2)  What  were  the  privileges  and 
immunities  of  these  citizens  ?  (3)  What  was  the  effect  of  the 
Fourteenth  Amendment  upon  the  definition  of  United  States 
citizenship  ?  (4)  What  are  the  privileges  and  immunities  which 
now  attach  to  such  citizenship  ? 

In  the  original  Constitution  there  was  no  definition  of  United 
States  citizenship ;  in  fact,  there  was  surprisingly  little  discus- 
sion of  the  question  before  the  decision  of  the  Dred  Scott  case 

1  The  Constitution  of  the  United  States,  Article  II,  Sect,  i,  clause  4. 

2  Ibid.  Article  IV,  Sect.  ii. 


CONSTITUTIONAL  PRINCIPLES  75 

in  1857.  In  1874,  however,  in  a  case  which  arose  out  of  the 
Fourteenth  Amendment,  there  was  an  attempt  made  to  define 
citizenship  and  its  immunities  and  its  privileges  as  it  existed 
before  the  adoption  of  that  amendment.  In  Minor  v.  Happersett l 
the  court  said : 

Whoever,  then,  .  .  .  was  one  of  the  people  of  these  States  when  the  united  states 
Constitution  was  adopted  became  ipso  facto  a  citizen  —  a  member  of  SJo^JJj1* 
the  nation  created  by  its  adoption.     He  was  one  of  the  persons  asso-  Fourteenth 
ciating  together  to  form  the  nation,  and  was  consequently  one  of  its  a^defineTby 
original  citizens.  As  to  this  there  has  never  been  a  doubt.    Disputes  have  tne  court 
arisen  as  to  whether  or  not  certain  persons  or  certain  classes  of  persons 
were  part  of  the  people  at  the  time,  but  never  as  to  their  citizenship. 

Addition  might  always  be  made  to  the  citizenship  of  the  United 
States  in  two  ways :  first  by  birth  and  second  by  naturalization.  .  .  . 

The  Constitution  does  not  in  words  say  who  shall  be  natural-born 
citizens.  Resort  must  be  had  elsewhere  to  ascertain  that.  At  common 
law,  with  the  nomenclature  of  which  the  framers  of  the  Constitution 
were  familiar,  it  was  never  doubted  that  all  children  born  in  a  country 
of  parents  who  were  its  citizens  became,  themselves,  upon  their  birth, 
citizens  also.  These  were  natives  or  natural-born  citzens  as  distinguished 
from  aliens  or  foreigners.  Some  authorities  go  further  and  include  as 
citizens  children  born  within  the  jurisdiction  without  reference  to  the 
citizenship  of  their  parents.  As  to  this  class  there  have  been  doubts, 
but  never  as  to  the  first. 

The  immunities  of  United  States  citizens  before  the  adoption 
of  the  Fourteenth  Amendment  were  never  exhaustively  defined. 
Justice  Washington,  however,  in  a  case  before  the  circuit  court  of 
Pennsylvania,  made  an  attempt,  which, 'as  far  as  the  particular 
case  was  concerned,  was  an  obiter.  This  has  been  sustained  by 
subsequent  decisions  and  is  quoted  with  approval  in  the  Slaughter 
House  Cases.  Justice  Washington  said  concerning  the  immuni- 
ties of  the  United  States  citizens : 

They  may  all,  however,  be  comprehended  under  the  following  general  immunities 
heads :  protection  by  the  government,  with  right  to  acquire  and  possess  stated 
property  of  every  kind,  and  to  pursue  and  obtain  happiness  and  safety,  citizens 
subject,  nevertheless,  to  such  restraints  as  the  government  may  prescribe  f 

for  the  general  good  of  the  whole.2 

1  21  Wall.  162,  167.  2  16  Wall.  36,  76. 


76   THE  GOVERNMENT  OF  THE  UNITED  STATES 


Effect  of  the 
Dred  Scott 
decision 


The  Four- 
teenth 
Amendment 
reverses  the 
Dred  Scott 
decision 


Immunities 
of  United 
States  citi- 
zens since 
the  Four- 
teenth 
Amendment 
as  defined  by 
the  court 


Briefly  this  means  that  (i)  the  protection  of  the  government  of 
the  state,  (2)  the  right. to  acquire,  hold,  and  dispose  of  property 
upon  the  same  terms  as  citizens  of  the  state,  and  (3)  the  right 
of  free  entrance  and  removal  from  the  state  are  guaranteed  to 
the  citizens  of  the  United  States. 

In  1857,  however,  in  the  decision  of  the  Dred  Scott  case1 
which  denied  a  negro  the  remedies  of  the  courts  because  the 
Constitution  of  the  United  States  did  not  act  upon  one  of  the 
negro  race  whenever  he  "shall  be  made  free  under  the  laws  of 
a  state  and  raise  him  to  the  rank  of  a  citizen,  and  immediately 
clothe  him  with  all  the  privileges  of  a  citizen  of  any  other  state, 
and  in  its  own  courts,"  the  doctrine  was  put  forward  without  dis- 
sent that  a  state  could  not  confer  federal  citizenship.  The  ma- 
jority of  the  court,  however,  went  even  further  and  held  that  at 
the  adoption  of  the  Constitution  free  negroes  were  nowhere  rec- 
ognized as  citizens,  and  that  no  state  could  at  any  time  subse- 
quent to  the  adoption  of  the  Constitution  endow  negroes  with 
the  rights  of  citizenship  which  might  be  protected  by  the  courts. 

Without  further  examination  of  the  reasoning  or  questioning 
its  historical  accuracy,  it  is  sufficient  to  remember  that  this 
doctrine  did  not  meet  with  general  approval  and  was  reversed 
by  the  Fourteenth  Amendment.  Since  the  adoption  of  that 
amendment  the  definition  of  both  federal  and  state  citizenship 
has  been  removed  from  the  realm  of  judicial  theory  and  has 
been  explicitly  stated.  All  persons  who  are  born  in  the  United 
States,  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  states  in  which  they  reside.  Absolute 
accuracy  thus  would  refer  to  a  citizen  of  the  United  States  and 
a  resident  of  a  state. 

What  has  been  the  effect  of  the  Fourteenth  Amendment 
upon  the  immunities  which  by  both  the  fifth  Article  and  the 
Fourteenth  Amendment  are  given  to  citizens  of  the  United 
States  ?  This  was  exhaustively  discussed  in  the  Slaughter  House 
Cases,  where  the  obiter  of  Justice  Washington  was  quoted  with 
approval,  and  the  assertion  made  that  it  was  not  the  intent  of 
the  amendment  to  transfer  the  protection  of  all  civil  rights  from 
the  states  to  Congress.  Rather  it  was  held  that  the  immunities 

i  19  How.  393. 


CONSTITUTIONAL  PRINCIPLES  77 

and  privileges  of  the  United  States  citizens  were  the  same  as 
had  been  guaranteed  to  the  citizens  of  the  several  states,  the 
amendment  merely  adding  a  prohibition  upon  their  infringement 
by  the  state.1 

Certain  limitations  of  the  privilege  of  state  citizenship  must  Limitations 
be  noted.    The  privileges  which  a  citizen  enjoys  within  his  own  $ sutecft* 
state  cannot  be  carried  into  another  state  and  there  enjoyed  izenshiP 
contrary  to  the  laws  of  that  state.    This  is  but  another  way  of 
«  saying  that  the  laws  of  a  state  have  no  force  outside  of  its  own 
boundaries.    Thus,  while  it  was  held  in    Ward  v.  Maryland? 
that  Maryland  could  not  require  a  citizen  of  another  state  to  take 
out  a  license  for  the  sale   of  certain  goods  not  manufactured 
within  the  state,  it  has  been  repeatedly  held  that  a  state  may 
prohibit  or  limit  the  sale  or  use  of  certain  articles  within  its  own 
boundaries,  provided  such  regulations  apply  alike  to  residents 
and  nonresidents  of  the  state,  and  are  genuine  police  regulations 
and  not   undue  restraints  upon   commerce.  Thus  a  citizen  of 

1  "  .  .  .  We  venture  to  suggest  some  which   owe   their  existence   to  the 
Federal  government,  its  national  character,  its  Constitution  or  its  laws.   One  of 
these  is  well  described  in  the  case  of  Crandall  v.  Nevada  (6  Wall.  35).   It  is 
said  to  be  the  right  of  the  citizen  of  this  great  country  protected  by  implied 
guarantees  of  its  Constitution,  'to  come  to  the  seat  of  government  to  assert 
any  claim  he  may  have  upon  that  government,  to  transact  any  business  he 
may  have  with  it,  to  seek  its  protection,  to  share  its  offices,  to  engage  in 
administering  its  functions.    He  has  the  right  of  free  access  to  its  seaports, 
through  which  all  operations  of   foreign  commerce  are  conducted,  to  sub- 
treasuries,  land  offices,  and  courts  of  justice  in  the  several  States.  .  .  . ' 

"  Another  privilege  of  a  citizen  of  the  United  States  is  to  demand  the  care  and 
protection  of  the  Federal  government  over  his  life,  liberty,  and  property  when 
upon  the  high  seas  or  within  the  jurisdiction  of  a  foreign  government.  Of  this 
there  can  be  no  doubt,  nor  that  the  right  depends  upon  his  character  as  a  citizen 
of  the  United  States.  The  right  to  peaceably  assemble  and  petition  for  redress 
of  grievances,  the  privilege  of  the  writ  of  habeas  corpus,  are  rights  of  the  citizen 
guaranteed  by  the  Federal  Constitution.  The  right  to  use  the  navigable  waters 
of  the  United  States,  however  they  may  penetrate  the  territory  of  the  several 
states,  all  rights  secured  to  our  citizens  by  treaties  with  foreign  nations,  are 
dependent  upon  citizenship  of  the  United  States,  and  not  upon  citizenship  of  a 
state.  One  of  these  privileges  is  conferred  by  the  very  article  under  considera- 
tion. It  is  that  a  citizen  of  the  United  States  can,  of  his  own  volition,  become 
a  citizen  of  any  state  of  the  Union  by  a  bona  fide  residence  therein,  with  the 
same  rights  as  other  citizens  of  that  state.  To  these  may  be  added  the  rights 
secured  by  the  Thirteenth  and  Fifteenth  Articles  of  Amendment,  and  by  the 
other  clause  of  the  Fourteenth  next  to  be  considered." —  1 6  Wall.  36.  79-80 

2  12  Wall.  418. 


78      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Political 
privileges 
granted  by 
states 


Massachusetts  could  not  claim  the  right  to  sell  intoxicating  liquor 
in  Maine  when  such  sale  was  prohibited  to  residents  and  nonresi- 
dents alike,  although  he  was  allowed  to  sell  such  liquor  under 
certain  conditions  in  Massachusetts.  In  like  manner  "  .  .  .  the 
citizens  of  one  State  are  not  invested  by  this  clause  of  the  Con- 
stitution with  any  interest  in  the  common  property  of  the  citizens 
of  another  State." l  Thus  the  privileges  of  profiting  by  the 
oyster  beds  in  Virginia  might  be  reserved  to  the  citizens  of  that 
state.  So  also  the  property  which  a  citizen  of  a  state  has  in  the  * 
free  education  offered  by  the  state  in  which  he  resides  cannot 
be  enjoyed  in  a  state  in  which  he  is  merely  temporarily  living. 
It  is  furthermore  to  be  noted  that  the  political  privileges,  the 
right  to  vote  and  the  right  to  hold  office,  are  not  included  in 
either  the  definition  of  the  privileges  common  to  all  citizens 
or  to  United  States  citizens.  These  are  determined  by  the  laws 
of  the  several  states,  and  before  the  passage  of  the  Fourteenth 
and  Fifteenth  Amendments  a  state  could  withhold  the  right  to 
vote  from  any  class  it  might  desire.  The  Fifteenth  Amendment 
prohibited  disfranchisement  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude,  while  the  Fourteenth  attempted 
to  provide  penalties  for  withholding  the  franchise  by  a  reduction 
of  the  representation  of  the  state  so  doing.  These  provisions 
have  not  been  enforced  and  Massachusetts  refuses  the  franchise 
to  illiterates,  Pennsylvania  to  those  who  have  not  paid  certain 
taxes,  while  several  Southern  states,  by  the  "grandfather"  clause, 
allow  illiterate  whites  to  vote  while  disfranchising  illiterate 
blacks.  The  courts,  in  applying  these  amendments,  have  unani- 
mously held  that  the  right  of  suffrage  is  not  one  of  the  necessary 
privileges  of  the  citizen  of  a  state  or  the  United  States.2  And 
specifically  it  has>  been  declared  that  "the  Fifteenth  Amend- 
ment does  not  confer  the  right  of  suffrage  upon  anyone.  It 
prevents  the  state  or  the  United  States,  however,  from  discrim- 
inating on  account  of  race,  color,  or  previous  condition  of 
servitude,  and  invests  citizens  with  a  new  constitutional  right 
which  Congress  may  protect  by  legislation."  Thus  the  question 
of  the  extension  of  the  suffrage  to  women  depends  not  upon 

1  McCready  v.  Virginia,  94  U.  S.  391,  395. 

2  Minors.  Happersett,  21  Wall.  162. 


CONSTITUTIONAL  PRINCIPLES  79 

congressional  action  but  upon  state  laws  unless  secured  by  an 
amendment  to  the  Constitution. 

As  has  been  seen  citizenship  may  be  gained  in  two  ways  —  HOW  citizen 
by  birth  and  by  naturalization.  Acting  upon  the  constitutional 
provision,  Congress  has  passed  laws  which  put  the  control  of  W 
naturalization  largely  in  the  hands  of  the  court.  There  are  zation 
three  stages  to  the  proceedings.  The  first  is  a  declaration  of 
intention,  which  must  be  filed  by  the  applicant  (who  must  be 
at  least  eighteen  years  of  age)  at  least  two  years  before  his 
admission  as  a  citizen.  In  this  declaration  the  alien  renounces 
his  allegiance  to  all  foreign  powers  and  declares  his  intention 
of  becoming  a  citizen.  The  second  step  is  to  file  a  petition 
stating  that  the  applicant  has  been  a  resident  of  the  United 
States  for  at  least  five  years  and  is  not  opposed  to  organized 
government,  is  not  a  polygamist,  and  has,  not  less  than  two  nor 
more  than  four  years  previously,  filed  his  intention  of  becoming 
a  citizen.  This  petition  must  be  accompanied  by  affidavits  from 
two  citizens  testifying  to  the  residence  and  good  moral  character 
of  the  applicant.  The  third  step,  taken  ninety  days  after  the 
petition,  is  the  hearing  and  examination  by  the  judge.  This,  at 
some  periods  of  our  history  and  in  some  localities,  has  been 
farcical,  but  generally  the  judge  satisfies  himself  of  -the  truth 
of  the  statements  made  and  of  the  applicant's  comprehension 
of  his  declarations.  When  the  judge  is  satisfied  the  oath  is 
administered  and  a  certificate  of  naturalization  is  issued.  Only 
white  persons  and  those  of  African  descent  are  eligible.  The 
law  expressly  excludes  the  Chinese,  while  by  interpretation 
Japanese  are  excluded  upon  the  ground  that  they  are  not  white 
persons.  Nevertheless  children  born  of  Chinese  or  Japanese 
parents,  resident  in  the  United  States  and  subject  to  its  juris- 
diction, although  their  parents  could  never  become  citizens  by 
naturalization,  are  citizens  by  birth.1 

Since  the  right  to  vote  depends  upon  state  action  a  state  may  unnaturai- 
extend  that  privilege  to  persons  who  have  not  been  naturalized,  may  vote  in 
An  anomalous  condition  may  exist  of  persons  who  are  not  citi-  some  states 
zens  of  either  the  United  States  or  of  any  state  taking  part  in 
the  election  of  state  and  national  officers.   Nine  states  thus  allow 

1  United  States  v.  Wong  Kim  Ark,  169  U.  S.  649. 


80      THE  GOVERNMENT  OF  THE.  UNITED  STATES 


interstate 


clause6*1* 


aliens  who  have  signified  their  intention  of  becoming  citizens  to 
take  part  in  their  elections. 

Not  merely  are  all  the  rights  of  citizens  thus  protected  but 
certain  provisions  of  the  Constitution  make  the  enforcement  of 
tnese  Privileges  more  secure  and  easy.  The  clause  in  Article  IV 
which  declares  that  "  full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  proceedings  of 
every  other  State  "  has  greatly  facilitated  interstate  relations. 
It  has  been  held  to  apply  only  to  civil  judgments  and  decrees, 
and,  while  not  extending  the  jurisdiction  of  the  courts  of  one 
state  into  the  territory  of  another,  allows  the  judgment  of  the  first 
court  to  be  offered  as  evidence  in  the  courts  of  another  state. 
Such  evidence  is  conclusive  and  no  reexamination  of  the  merits 
of  the  case  is  necessary.  For  example,  if  A  obtains  a  judgment 
against  B,  both  being  subject  to  the  jurisdiction  of  a  court 
within  the  same  state,  A  may  use  this  judgment  as  conclusive 
evidence  to  obtain  a  decree  from  the  court  of  another  state  to 
attach  the  property  which  B  may  have  in  that  state.  No  new 
suit  is  necessary  ;  all  that  A  has  to  do  is  to  offer  the  properly 
authenticated  decree  of  the  court  in  which  the  suit  was  first 
brought,  and  the  court  of  the  second  state  must  execute  it.1 
Extradition  In  like  manner  Article  IV,  Section  ii,  clause  2,  provides  for 
the  surrender  of  persons  charged  with  treason,  felony,  or  other 
crimes,  upon  the  demand  of  the  authorities  of  the  state  where  the 
crime  was  committed.  This  extradition  clause  has  made  possible 
the  enforcement  of  the  criminal  law  of  the  states.  Yet  as  there 
is  no  penalty  defined  either  in  the  constitutional  requirement  or 
in  the  congressional  act  which  declares  that  "  it  shall  be  the 
duty  of  the  executive  authority  of  the  state  to  cause  the  fugitive 
to  be  seized  and  delivered  to  the  agent  of  the  demanding  state," 
it  rests  with  the  discretion  of  the  executive  of  the  state  —  the 
governor  —  to  determine  whether  such  a  request  shall  be  honored. 
Several  cases  have  arisen  where  the  governors  have  exercised 
this  discretion  and  have  refused  to  return  fugitives,  one  of 
the  most  notable  being  the  refusal  of  the  governor  of  Indiana 
to  return  Governor  Taylor  of  Kentucky,  who  was  indicted  for 

i  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  I, 
p.  199. 


CONSTITUTIONAL  PRINCIPLES  8 1 

complicity  in  the  murder  of  Governor  Goebel  of  the  state.1  In 
1918  Governor  Me  Call  of  Massachusetts  refused  to  honor  a 
requisition  from  the  governor  of  West  Virginia,  on  the  ground 
that  the  negro  criminal  for  whom  the  extradition  was  asked 
would  not  receive  a  fair  trial.  This  brought  a  violent  protest 
from  West  Virginia,  but  the  state  was  obliged  to  acquiesce  in 
Governor  McCall's  decision. 

1 W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  I, 
pp.  222-224,  and  C.  A.  Beard,  Readings  in  American  Government  and  Politics, 
p.  148,  give  examples  of  extradition  proceedings. 


Politics,  the 
conscious  life 
of  the  state, 
is  the  direc- 
tion of  the 
government 
established 
by  the  Con- 
stitution 


Voters  and 
officials  try 
to  control  and 
direct  state 
action 


CHAPTER  V 


POLITICAL  ISSUES  AND  PARTY  HISTORY 

In  spite  of  the  oft-repeated  declaration  that  our  government 
is  one  of  laws  and  not  of  men,  the  actual  operations  of  the  gov- 
ernment are  those  of  men  working  under  the  Constitution.  The 
Constitution  by  itself  would  be  an  interesting  and  instructive 
document  setting  forth  political  theories  ;  it  would  be  like  any 
scheme  for  an  ideal  Utopia.  Without  the  activities  of  men  it 
would  be  cold  and  inert,  like  a  steam  engine  without  steam. 
It  is  men  in  their  political  activities  who  operate  the  govern- 
ment and  change  the  Constitution  from  an  expression  of  polit- 
ical philosophy  into  the  charter  of  a  going  concern.  Politics  is 
the  guidance  of  the  government  established  by  the  Constitution. 
It  is  the  utilization  of  the  discretionary  power  confided  by  the 
Constitution  to  the  government.  Politics  is  the  conscious  life 
of  the  state.  For  example,  the  Constitution  provides  for  the 
choice  of  a  president,  but  no  president  would  be  chosen  unless 
the  political  activity  of  individual  citizens  determined  who  should 
be  chosen  and  performed  the  necessary  operations  prescribed 
by  the  Constitution.  Again,  Congress  may  levy  taxes  and  appro- 
priate money,  but  political  activity  determines  what  tax  shall  be 
levied  and  how  much  money  shall  be  appropriated.  All  legisla- 
tive and  most  executive  action  is  political,  and  the  very  laws 
which  the  courts  apply  are  the  result  of  political  activity.  To 
decry  politics,  therefore,  is  to  decry  the  government  performing 
its  functions. 

The  political  activities  of  the  citizen  are  generally  performed 
both  outside  and  inside  the  formal  government.  They  comprise 
the  countless  conferences  and  the  numerous  understandings  and 
agreements,  and  the  molding  of  public  opinion,  all  of  which  lead 
towards  a  certain  action  by  the  government.  The  putting  forward 
of  a  candidate,  the  popularization  of  a  measure,  the  contribution 
of  money,  and  the  appeal  to  a  Congressman  are  all  parts  of  the 


82 


POLITICAL  ISSUES  AND  PARTY  HISTORY          83 


political  activity  of  a  citizen  outside  of  the  formally  established 
government.  The  veto  of  a  president,  the  vote  of  a  senator,  the 
appointment  of  an  officer  and  many  of  his  acts,  are  political  activ- 
ities within  the  formal  government.  Briefly  it  may  be  said  that 
the  unofficial  citizen  attempts  to  choose  as  officials  men  who  will 
direct  the  action  of  the  government  according  to  his  desires. 
The  official,  as  far  as  it  lies  within  his  power,  compels  the 
agencies  of  the  state  to  act  in  accordance  with  his  wishes  and 
the  desires  of  his  supporters.  The  political  activity  of  both  the 
individual  citizen  and  the  official  thus  has  as  its  aim  the  attempt 
to  control  the  activity  of  the  state  and  to  produce  some  action. 

Since  a  single  individual  has  little  influence  by  himself,  he  Definition  of 
seeks  cooperation.    In  politics  this  cooperation  produces  a  polit- 
ical  party.    Professor  A.  D.  Morse  has  thus  rather  exhaustively 
defined  a  party : 

A  party  is  a  durable  organization  which,  in  its  simplest  form,  consists 
of  a  single  group  of  citizens  united  by  common  principles,  but,  in  its 
more  complex  forms,  of  two  or  more  such  groups  held  together  by  the 
weaker  bond  of  a  common  policy;  and  which,  contrary  to  the  view 
usually  held,  has  for  its  immediate  end  the  advancement  of  the  interests 
and  the  realization  of  the  ideals,  not  of  the  people  as  a  whole,  but  of 
the  particular  group  or  groups  which  it  represents.1 

The  organization  of  a  party  may  be  loose  or  strict.     In  its  party  orgam- 
simplest  form  it  consists  of  common  agreements  to  act  in  a  * 
definite  way.     In  its  complex  form  it  covers  the  multitude  of 
committees  and  leaders,  bosses  and  party  workers,  who  popularize 
the  party,  propagate  its  ideals,  and  control,  more  or  less  success- 
fully, the  activities  of  its  members.     The  aim  of_the  party  is  to  party  policy 
control  the  action  of  the  government  by  possession  of  the  offices. 
The  purposes  tor  whicrUhe  party  'Sesires  to  get  control  of  the 
government  constitute  its^  principles  or  policy.    These  may  deal 
with  moral,  social,  or  economic  questions,  but  the  action  of  the 
party  is  political.   It  attempts  to  get  possession  of  the  government 
to  realize  its  aims. 

In  England,  where  the  parliamentary  system  is  held  to  work 
in  an  ideal  way,  the  party  organization  and  the  government  are 

1  Political  Science  Qtiarterly,  Vol.  XI,  p.  68. 


84      THE  GOVERNMENT  OF  THE  UNITED  STATES 


English  party 
organization 
is  an  instru- 
ment of  gov- 
ernment 


Parties  neces- 
sary in 


Parties  in 
the  United 
States  formu- 
late policies 
and  select 
officials 


identical.1  This  is  so,  because,  as  far  as  Parliament  is  concerned, 
the  Cabinet  is  the  party  organization.  The  responsible  executives, 
that  is,  the  ministers,  are  the  leaders  of  the  party  and  control 
the  party  organization.  The  party  organization  is  thus  an  instru- 
ment of  the  government.  Therefore,  not  merely  does  complete 
harmony  between  the  government  and  the  party  organization 
exist  but  by  no  possibility  can  disagreements  arise,  for  the 
government  and  the  party  are  one. 

The  f ramers  of  the  Constitution  of  the  United  States  did  not 
understand  parties  ;  they  feared  and  distrusted  them.  Therefore 
they  made  no  provision  for  their  action  in  their  plan  of  govern- 
ment. Yet  the  system  they  established  necessitated  parties.  The 
selection  of  the  president  irom  a  single  constituency  —  the  largest 
in  the  world,  the  whole  country  —  required  the  action  of  parties 
to  solidify  public  opinion  and  to  name  the  candidates.  The 
vast  power  in  the  hands  of  the  president  made  his  choice  of 
supreme  importance  since  he  could  determine  such  questions 
as  war  and  peace.  Declarations  of  policy  must  therefore  be 
made  as  to  what  the  party  behind  the  candidate  proposed  that 
the  government  should  do.  And  since  there  was  a  separation 
of  departments  —  since  no  parliamentary  system  was  possible 
—  it  was  desirable  that  the  legislature  should  be  in  harmony 
with  the  executive.  To  bring  about  this  harmony  in  the  absence 
of  parliamentary  control,  party  control  was  developed.  Thus  it 
happens  that  our  system,  designed  to  minimize  the  power  of 
"factions,"  as  parties  were  called,  would  fail  to  operate  without 
parties. 

Yet  unlike  the  English  system  there  was  no  opportunity  pro- 
vided whereby  a  party  could  exercise  its  functions  through  the 
regular  organs  of  the  state.  "There  were  no  means  provided 
whereby  a  party  could  formulate  and  carry  through  its  policy, 
select  its  candidates  for  high  office,  or  insure  that  they  should  be 
treated  as  the  real  leaders  of  the  party  and  control  its  action.2 
Party  organization  therefore  exists  outside  of  and  independently 
of  the  organs  of  the  government  in  the  United  States.  There- 
fore parties  are,  or  to  be  more  accurate  were  until  recently,  private 


1  A.  L.  Lowell,  The  Government  of  England,  Vol.  I,  p.  444. 

2  Ibid.  p.  441. 


POLITICAL  ISSUES  AND  PARTY  HISTORY          85 

extra-legal  organizations  unrecognized  by  law.1  Thus  it  happens 
that  in  the  United  States  parties  exist  chiefly  for  the  selection 
of  candidates,  while  the  candidates  so  chosen  may  or  may  not 
be  the  leaders  of  the  party  or  influential  in  its  councils.  Personal 
interest  and  party  loyalty  may  keep  the  official  in  harmony  with 
his  party  organization,  but  since  his  term  of  office  is  fixed  by 
law  no  action  of  the  party  can  dictate  his  action.  Thus  a  presi-  officials  may 
dent  may  become  entirely  out  of  sympathy  with  his  party  and, 
because  of  the  vast  power  he  possesses,  may  be  able  to  force 
through  Congress  some  action  contrary  to  the  desires  of  his 
party.  For  example,  in  the  second  administration  of  President 
Cleveland  the  more  radical  Democrats  —  and  they  were  in  the 
majority  within  the  party  —  were  unable  to  prevent  the  repeal  of 
the  Sherman  Silver  Purchase  law  and  the  measures  the  presi- 
dent took  to  protect  the  treasury.  In  other  words,  although  the 
party  may  elect  its  candidates  to  direct  the  action  of  the  state, 
there  is  no  guarantee  that  the  official  will  act  in  accord  with  his 
party.  To  put  it  still  another  way,  in  England  absolute  party 
government  exists,  while  in  the  United  States  the  parties  have 
not  the  legal  power  of  insunngthe  performance  of  their  will. 

Since  the  aim  of  political  parties  is  to  gain  possession  of  the  Economic 
organs  of  the  government  and  control  the  action  of  the  state,  it  affect  party 
is  possible  to  study  the  party  history  by  examining  the  various  188ues 
issues  over  which  the  parties  have  divided.    Thus  it  is  customary 
to  speak  of  the  Federalist  period,  the  JefTersonian  period,  or  the 
struggle  over  slavery,  and  to   discuss  the  various   parties  that 
were  formed  in  those  eras.    Recently/ however,  a  brilliant  writer 
has  attempted  to  explain  the  political  issues  along  economic 
lines.2    He  holds  that  the  numerous  parties  under  the  guise  of 
constitutional  or  moral  issues  were  attempting  to  control  the 
government  and  direct  its  activities  for  economic  purposes  ;  that 
the  political  history  of  the  country  has  been  in  its  last  analysis 
but  a  struggle  between  wealth  in  its  various  forms  —  land,  com- 
merce, manufactures,  capital  —  and  poverty.   Without  attempting 

1  As  recently  as  1912  the  Republican  party  held  that  it  was  purely  a  private 
body  whose  actions  were  uncontrolled  by  the  laws  of  the  states. 

2  C.  A.  Beard,  An  Economic  Interpretation  of  the  Constitution  of  the  United 
States  ;  Economic  Origins  of  Jeffersonian  Democracy. 


86      THE  GOVERNMENT  OF  THE  UNITED  STATES 

to  follow  his  method  too  closely,  it  is  possible  in  describing  the 
great  political  issues  to  recognize  that  the  economic  element  has 
too  often  been  slighted  and  to  see  that  even  in  the  gravest  moral 
or  constitutional  crises  the  claims  of  property  have  never  been 
lost  sight  of. 

Parties  before       Before  the  Revolution  there  were  no  national  parties  in  the 
tion  C  true  sense  of  the  word.     Local  parties  existed  in  each  colony. 

These  usually  were  composed,  on  the  one  hand,  of  the  office- 
holders and  the  well  to  do  and,  on  the  other  hand,  of  those  who 
were  opposed  to  the  exercise  of  the  power  of  the  provincial  gov- 
ernors. Generally  the  latter  were  composed  of  the  small  farmers 
and  those  who  had  little  property.  But  the  franchise  .was  so 
limited  and  the  difficulties  of  travel  so  great  that  the  possibility 
of  effective  political  expression  was  slight.  The  Revolution  pro- 
duced a  domestic  upheaval.  The  leaders,  and  they  were  by  no 
means  all  from  the  poorer  class,  were  forced  to  call  upon  those 
less  economically  fortunate  who  had  never  exercised  political 
rights.  The  struggles  of  the  Confederation  were  largely  between 
the  poverty-stricken  class  and  the  well  to  do.  The  question  of  debts, 
mortgages,  money,  and  the  security  of  property  were  the  most  vital 
ones  both  politically  and  economically  between  1783  and  1787. 
Federalists  It  is  customary  to  speak  of  political  parties  as  originating  in 
10£a  lt  the  convention  of  178^7.  Certain  national  political  tendencies 
were  there  manifested.  Certain  lines  of  cleavage  there  emerged. 


rights  men)  One  group,  and  those  chiefly  from  the  small  states,  desired  a 
federated  government,  with  few  restrictions  upon  the  state  gov- 
ernments, which  were  left  to  the  control  of  the  people.  The 
other  group,  which  drew  its  strength  chiefly  from  the  delegates 
of  the  large  states,  wished  to  form  a  national  government  so 
strong  that  it  would  be  able  to  control  the  action  of  the  legisla- 
tures of  the  states  and  prevent  radical  action  which  might 
threaten  the  security  of  property.  Although  a  federal  type  of 
government  was  adopted,  the  national  party  and  the  property 
interests  received  ample  protection.  In  the  struggle  for  the 
adoption  of  the  Constitution,  which,  as  has  been  said,  is  federal 
in  form,  the  nationalists  took  the  name  of  the  Federalists  and 
urged  its  adoption,  while  the  small  states  party  was  forced  to 
content  themselves  with  the  name  of  Anti-Federalists. 


POLITICAL  ISSUES  AND  PARTY  HISTORY          87 

The  government  was   organized  by  those  who  favored  the  Federalists 
Constitution,    the    Federalists,    but   a   division   soon   appeared.  nStfonaigov- 
For  example,  Madison  with  Hamilton  had  favored  the  adoption  emment 
of  the  Constitution,  and  down  to  1789  both  were  Federalists. 
But  the  financial  plans  of  Hamilton  and  the  foreign  policy  of 
Washington  were  contrary  to  the  desires  of  both  Jefferson  and 
Madison  and  their  followers.    Hence   the  first   political  issue 
under  the  Constitution  was  over  what  course  the  newly  established 
government    should    take.     Washington,    Hamilton,    and    the 
Federalists,  who  controlled  the  offices  for  twelve  years,  utilized 
the  powers  they  found  and  discovered  new  powers  which  might 
be  implied  from  certain  clauses  of  the  Constitution  —  to  fund 
and  pay  the  national  debt,  to  establish  a  national  bank,  and  to 
foster  the  commerce  and  trade  of  the  country.    They  professed 
to  believe  that  the  Constitution  established  not  merely  a  national 
government   but  one   superior  to  the  states.    They  controlled 
the   government;   and   the    government,   under   their   control, 
adopted  financial,  domestic,  and  foreign  policies  most  displeas- 
ing to  their  opponents.    This  displeasure  arose  from  a  distrust 
both   of    the   policies   themselves   and    of   the   theories    which 
underlay  the  policies.    The  Federalists  advocated  large  powers 
for  the  national  government  so  that  it  might  establish  order, 
preserve  property,  and  promote  new  enterprises.   The  Democratic-  National 
Republicans,  off  the  other  hand,  feared  tyranny  and  were  deeply  8U*re)JJiac3r 
and  sentimentally  attached  to  local  liberties,  and  wished  a  govern-  states>  rights 
ment  in  close  touch  with  the  people  and  easily  controlled  by  them. 
The  financial  schemes  of  Hamilton  and  the  Federalists  were  de-  Hamilton's 
signed  to  strengthen  the  national  government,  over  which  the 
people  had  less  control  than  they  had  over  the  governments  of 
their  own  states.    The  Democrats  feared  large  enterprises  and  an£ economic 
were  distrustful  of  wealth  other  than  in  land.  The  class  holding 
the  government  securities  created  by  the  Federalists  would  be 
the  strong  ally  of  the  central  government,  which  protected  them 
and  would  willingly  support  the  party  which  gave  security  to  their 
wealth.  Therefore,  alike  upon  political  theory  and  economic  policy 
there  was  a  growing  solidification  of  the  two  groups. 

The  Federalists  in  control  of  the  government  were  directing 
its  policy  contrary  to  the  desires  of  the  mass  of  the  people. 


88      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Opposition 
party  not  to 
overthrow 
the  govern- 
ment but  to 
control  it 


Republicans 
condemned 
but  used  the 
strong  powers 
of  the  gov- 
ernment 


Jeffersonian 
democracy 

Federalism 


The  Republicans  opposed  to  the  Federalists  distrusted  their 
policies  and  hated  their  aims.  The  ill-advised  attempts  in  the 
administration  of  Adams  might  have  caused  an  explosion  or  a 
revolution  and  possibly  a  disintegration  of  the  Union  had  not 
a  political  party  been  formed.  It  was  one  of  the  greatest 
achievements  of  Jefferson  that  he,  perhaps  unconsciously,  opened 
the  constitutional  channels  of  political  agitation  and  started  a 
process  by  which  the  Constitution  might  be  developed.  He  and 
his  followers  formed,  not  a  revolutionary  group  bent  upon  the 
overthrow  of  the  constitutional  system  but  a  national  political 
party  whose  object  was  to  gain  control  of  the  instruments  of 
the  government  and  utilize  them  according  to  their  will.  The 
\result  was  remarkable.  The  revolutionary  Jacobin  clubs  became 
party  organizations.  Gallatin,  the  spokesman  of  the  whisky 
insurrectionists,  became  a  Republican  leader.  Factions  became 
political  parties.1 

In  1 80 1  the  Republicans  gained  control  of  the  presidency 
and  Congress  and  set  about  the  realization  of  their  aims.  The 
Alien  and  Sedition  laws  were  allowed  to  expire,  the  internal 
revenue  laws  were  repealed,  the  army  and  navy  were  diminished. 
But  the  Republicans  did  not  hestitate  to  use  the  large  powers 
the  Federalists  had  claimed  for  the  government.  The  national 
bank  was  allowed  to  continue  and  was  even  used  for  party 
purposes,  while  the  purchase  of  Louisiana  made  use  of  powers 
far  beyond  any  of  those  employed  by  the  Federalists.  A  ten- 
dency noted  in  other  countries  and  in  other  times  was  quite 
marked  in  this  period  —  a  readiness  to  utilize  powers  which 
were  denounced  when  employed  by  their  opponents.  These 
denunciations,  while  in  opposition  in  many  instances,  were 
directed  quite  as  much  against  the  use  their  opponents  made 
of  the  power  as  against  the  power  itself. 

Nevertheless  it  would  be  a  mistake  to  assume  that  the  change 
in  1 80 1  was  a  mere  substitution  of  the  "outs"  for  the  "ins." 
Jefferson  was  a  strong  national  Democrat  —  political  democracy 
was  his  ideal  —  who  advocated  equal  justice  to  all  and  special 
privilege  to  none.  The  means  he  advocated  were  to  retain 


1  This  is  most  suggestively  stated  by  H.  J.  Ford,  The  Rise  and  Growth  of 
American  Politics,  p.  126. 


POLITICAL  ISSUES  AND  PARTY  HISTORY          89 

large  powers  in  the  hands  of  the  states,  for  he  believed  that  the 
states,  rather  than  the   national  government  as  established  by 
the  Federalists,  were  the  hope  of  democracy.    But  when  the  states' rights 
Republicans  gained  control  of  the  government,  when  the  govern-  Federai 
ment  was  in  the  hands  of  the  friends  of  democracy,  then  the  8UPrem*«y 
national  government  could  be  safely  used  to  promote  popular 
interests,  and  it  was  inevitable  that  its  powers  should  increase 
at  the  expense  of  the  states.1    Then,  too,  there  was  a  sharp  con- 
trast in  the  economic  theories.    Hamilton  and  the  Federalists 
sought  to  encourage  manufactures.    Jefferson  was  a  true  agrarian 
and  expressed  his  views  as  follows  : 

While  we  have  land  to  labor,  let  us  never  wish  to  see  our  citizens  Agrarianism 
occupied  at  a  workshop  or  twirling  a  distaff.  .  .  .    Let  our  workshops  indU8triaii8m 
remain  in  Europe.    It  is  better  to  carry  provisions  and  materials  to 
workmen  there  than  to  bring  them  to  the  provisions  and  materials,  and 
with  them  their  manners  and  principles.  .  .  .    The  mobs  of  great  cities 
add  just  so  much  to  the  support  of  pure  government  as  sores  do  to  the 
strength  of  the  human  body.2 

The  triumph  of  the  Republican  party  meant  that  the  government 
was  now  in  the  possession  of  the  school  opposed  to  the  capital- 
istic class,  which  had  obtained  the  Constitution  with  all  its 
safeguards  for  property.  It  did  not  involve  any  fundamental 
alterations  in  the  Constitution  nor  did  it  propose  any  more  im- 
mediate control  of  the  government  by  the  people.  It  did  mean, 
economically,  the  possession  of  the  government  "  by  the  agrarian 
masses  led  by  an  aristocracy  of  slave-owning  planters,  and  the 
theoretical  repudiation  of  the  right  to  use  the  Government  for 
the  benefit  of  any  capitalistic  groups,  fiscal,  banking,  or  manu- 
facturing." 3 

From  the  close  of  the  War  of   1812  until   1832  there  was  Personal 
nominally   but   one    national   party,    and   with   the   election   of 
Monroe  in  1816  the  "  Era  of  Good  Feeling"  set  in.    Yet  there 

1  See  J.  A.  Woodburn,  Political  Parties  and  Party  Problems  in  the  United 
States,  pp.  26-27. 

2  H.  J.  Ford,  The  Rise  and  Growth  of  American  Politics,  p.  104 ;  Writings 
of  Thomas  Jefferson  (P.  L.  Ford,  ed.),  Vol.  IV,  p.  480;  see  also  C.  A.  Beard, 
Economic  Origins  of  Jeffersonian  Democracy,  chap.  xiv. 

8  C.  A.  Beard,  Economic  Origins  of  Jeffersonian  Democracy,  p.  467. 


9o 


THE  GOVERNMENT  OF  THE  UNITED  STATES 


Party  divi- 
sions re- 
appear 


Western 
democracy 


Immigration 
and  manhood 
suffrage 


South  and 
West  v.  East 


Jacksonian 
democracy 


was  anything  but  good  feeling  between  the  different  political 
groups.  It  was  rather  an  era  of  personal  politics,  when  the 
struggle  of  the  different  leaders  attracted  more  attention  than 
the  policies  they  sought  to  dictate.  The  election  of  Adams  in 

1824  did  much  to  solidify  parties,  and  by  1828  divisions  along 
the  lines  of  public  policies  began  to  appear. 

These  divisions  were  formed  upon  both  an  economic  and  a 
democratic  basis.  The  rapid  growth  of  the  West  was  producing  a 
society  where  substantial  equality  existed  and  where  almost  abso- 
lute democracy  found  free  play.  In  the  East  great  numbers  of 
immigrants  had  settled  in  newly  formed  manufacturing  centers, 
and,  although  during  the  first  quarter  of  the  century  the  property 
qualification  prevented  'their  taking  part  in  the  government,  by 

1825  the  relaxation  of  these  tests  made  the  industrial  class  a 
force  to  be  reckoned  with.     Like  the  frontiersmen  they  held 
democratic  ideas  and  willingly  followed  leaders  who  promised 
popular  control  of  the  government.     The  industrial  revolution 
in  England  and  the  invention  of  the  cotton  gin  increased  the 
demand  for  cotton.    This  changed  the  agricultural  system  of  the 
South.    Slavery  was  changed  from  a  domestic-plantation  system 
to  a  capitalistic  institution.     Demand  for  slaves  and  demand  for 
more  slave  territory  became  political  issues.     The  West  again 
needed  money  to  develop,  which  the  capitalists  of  the  East  sup- 
plied.   To  avoid  this  dependence  the  Western  states  advocated 
a  relaxation  of  the  banking  laws  so  that  state  banks  could  furnish 
cheap  and  easy  money  with  which  their  obligations  might  be  met. 

In  1828  these  various  elements  united  upon  Jackson.  He  had 
the  popularity  of  a  successful  military  hero  ;  he  was  a  Westerner, 
thoroughly  democratic  in  nature  and  habit  ;  and,  above  all,  he 
was  a  strong  nationalist.  From  1828  until  1860  the  Jacksonian 
party  was  successful  in  electing  its  candidates  at  every  election, 
with  two  exceptions  —  in  1840  and  1848  the  Whigs  nominated 
"  military  heroes,"  and  triumphed.  Under  the  Democratic  party 
the  institutions  of  the  state  came  more  under  popular  control 
than  even  in  the  Jeffersonian  period.  Rotation  in  office  and  the 
spoils  system  seemed  firmly  fastened  upon  the  government.  The 
banking  system  established  by  the  Federalists  and  continued  by 
Jefferson  was  destroyed,  and  dubious  experiments  in  finance 


POLITICAL  ISSUES  AND  PARTY  HISTORY          91 

were  tried.  Yet  Jackson  was  a  strong  upholder  of  the  unity  and 
strength  of  the  government,  as  the  nullifiers  in  South  Carolina 
found  to  their  cost. 

The  party  in  opposition  found  it  difficult  to  formulate  princi-  jacksonian 
pies.    It  included  the  manufacturers  and  capitalists  of  the  East,  instates  >gs 
who  were  irrevocably  opposed  to  wildcat  banks  and  who  desired  rishts  men 
higher  and  higher  tariff  duties  to  protect  their  industries,  and 
far-reaching  internal  improvements.    Webster  and  Clay  may  be 
taken  as  typical  leaders  of  this  group.    Another  element  in  this 
opposition  party  was  composed  of  those  who  would  restrict  the 
activities  of  the  central  government  —  states'  rights  men,  who 
approved  of   nullification.    With   elements   so  opposed   it  was 
difficult  to  obtain  sufficient  unanimity  to  produce  a  party.    In 
addition  the  question  of  slavery  was  growing  more  and  more  whigs 


insistent,  and  the  Whigs'  attempts  to  settle  it  by  compromise 


were  foredoomed  to  failure.  It  was  the  slavery  question  quest 
in  its  various  forms  —  expansion  of  slave  territory,  fugitive-slave 
laws,  slavery  in  the  territories,  squatter  sovereignty,  and  aboli- 
tion —  that  wrecked  the  Whig  party  and  changed  the  Democratic 
party  for  a  time  into  a  sectional  rjarty,  and  finally  produced  the 
Republican  party. 

Of  the  yarious  issues  which  led  to  the  emergence  of  the  origin  of  the 

T»         i  T  ,  .  /.IT.  <-•«  i    Republican 

Republican  party  the  question  of  abolition  was  first  in  time  and  party 
in  importance.  The  establishment  of  The  Liberator  by  William 
Lloyd  Garrison  in  1831  marks  the  beginning  of  the  agitation.  Abolition 
So  violent  were  the  methods  of  the  abolitionists  that  although 
their  societies  multiplied  they  attracted  little  political  following. 
Other  forces  were  needed  to  popularize  the  movement  and  to 
give  it  a  firm  political  foundation.  One  of  these  was  found  in 
the  demand  for  an  increase  of  slave  territory.  The  controversies 
over  the  annexation  of  Texas,  the  Mexican  War,  and  the  question 
of  the  disposition  of  the  territory  acquired  presented  problems 
less  of  a  moral  and  more  of  a  political  nature.  In  1848  the 
Free  Soil  party  nominated  candidates  upon  a  platform  which  Freesoii 
might  be  acceptable  to  those  whom  the  violence  of  the  abolition- 
ists repulsed.  It  declared  that  slavery  should  be  barred  from 
national  territory  by  national  power;  that  there  should  be  no 
more  slave  states  ;  that  interstate  and  coastwise  slave  trade 


92      THE  GOVERNMENT  OF  THE  UNITED  STATES 


V 


Compromise 
of  1850 


Kansas- 
Nebraska  Act 


Stephen 
Douglas  and 
popular  sov- 
ereignty 


Republican 
platform  of 
1854 


Civil  War 
increased 
federal  power 
and  made  the 
Republican 
party  con- 
servative 


should  be  forbidden.  This  platform  was  attractive  from  its 
conservative  nature.  The  objects  sought  for  could  be  achieved 
by  political  parties  acting  within  the  Constitution  and  without 
attempting  to  overthrow  the  government. 

The  time,  however,  was  not  yet  ripe  for  a  complete  destruc- 
tion of  the  Whigs  and  the  establishment  of  a  new  political  party. 
The  compromise  of  1850,  engineered  by  that  skillful  Whig  leader, 
Henry  Clay,  temporarily  halted  the  movement,  and  both  the 
Whigs  and  Democrats  hoped  that  the  troublesome  question  was 
finally  settled.  But  the  act  of  1854,  repealing  the  Missouri  Com- 
promise, soon  undeceived  them.  The  doctrines  of  noninterven- 
tion applied  by  Douglas  to  the  Missouri  Compromise  startled 
both  parties.  The  Southern  Democrats  seized  it  as  making 
the  extension  of  slave  territory  possible.  The  Northern  Whigs 
regarded  it  as  attacking  the  great  Compromise  which  had  made 
their  party  possible.  Furthermore,  the  Northern  Democrats,  by 
no  means  anxious  to  see  slavery  extended,  while  alienated  from 
the  party,  were  not  ready  to  join  the  Whigs  with  their  doctrines 
of  high  protection  and  vast  internal  improvements. 

In  1856  the  Republican  party  was  formed.  The  platform  was 
skillfully  framed.  The  issue  of  slavery  was  squarely  met,  and  it 
was  asserted,  contrary  to  the  dictum  of  the  Supreme  Court  in 
the  Dred  Scott  case,  that  Congress  could  exclude  slavery  from 
federal  territory.  Slavery  existed  only  by  state  law.  On  the 
question  of  the  tariff  ample  protection  for  American  industries 
was  promised.  To  attract  the  nonmanufacturing  vote  a  new 
homestead  law  was  pledged  with  a  generous  policy  of  disposal 
of  public  lands.  In  1860  the  Republicans  were  successful  and 
Lincoln  was  elected. 

The  result  of  the  election  was  secession  and  civil  war,  and 
the  Republican  party,  from  being  merely  the  antislavery  party, 
became  the  party  pledged  to  support  the  Union,  and,  indeed, 
took  for  a  time  the  name  of  the  Unionist  party.  The  cost  of  the 
war  caused  the  increase  of  taxation  in  all  directions,  but  espe- 
cially in  the  tariff,  so  that  from  being  a  party  pledged  to  a  mild 
form  of  protection  of  American  industries,  the  Republicans 
became  strongly  protectionist.  The  issuance  of  bonds  and  the 
establishment  of  the  national  banking  system  all  tended  to  make 


POLITICAL  ISSUES  AND  PARTY  HISTORY          93 

it  the  party  of  the  capitalists.  The  war  itself  and  the  problems 
connected  with  reconstruction  brought  about  the  extension  of  the 
functions  of  the  national  government  at  the  expense  of  the  states. 
In  its  economic  aims  and  its  governmental  theories  it  was  the  legiti- 
mate successor  of  the  Federalists  under  Hamilton,  although  its  pol- 
icies were  carried  further  than  Hamilton  had  ever  dared  to  dream. 

During  the  war  the  Democrats  were  split.    In  the  South  they  Disintegra- 
favored  slavery  and  led  the  secession  movement.    In  the  North  Democratic 
there  were  three  groups  :  the  war  Democrats,  who  loyally  sup- 
ported  the  war  as  a  war  for  the  preservation  of  the  Union ; 
a  middle  section,  by  far  the  most  numerous,  who  regarded  the 
war  as  brought  on  alike  by  the  "fanatics"  of  the  North  and 
the  "  fire-eaters  "  of  the  South,  who  resisted  the  war  as  a  war  for 
emancipation,  and  who   looked  to-  conciliation   as   the    means 
of  saving  the  Union ;   finally,  the  "  Copperheads,"  out-and-out 
opponents  of  Lincoln,  and  bent  on  making  the  prosecution  of 
the  war  as  difficult  as  possible.    The  measures  adopted  by  the  Revival  of 
Republicans  during  the  reconstruction  period  made  a  union  of  party™ 
these  three  wings  possible,   so  that  by    1875.  the   Democrats 
obtained  a  majority  in  the   House  and  claimed  that  in  1876 
their  candidate,  Tilden,  was  cheated  out  of  the  presidency  by 
the  action  of  the  electoral  commission  in  seating  Hayes. 

The  period  between  1876  and  1896  has  been  well  described  Republicans 
by  Professor  Beard  in  the  phrase  "  The  Growth  of  Dissent."  *  c^di^ae 
During  this  period  the  old  party  issues  of  slavery  and  recon-  onthetarifl 
struction  disappeared  and  a  series  of  new  issues  came  to  the 
front.    Nominally  the  tariff  most  markedly  divided  the  parties. 
The  Republicans,  more  and  more  the  party  of  high  protection, 
succeeded  in  writing  their  ideas  into  law  in  1890  and   1897. 
The  Democrats,  on  the  other  hand,  while  repudiating  the  title 
of  "  Free  Traders  "  bestowed  upon  them  by  their  opponents, 
had  by   1888   become  the   party  pledged   to  the  reduction  of 
duties  to  a  .revenue  basis.    The  only  tariff  law  they  succeeded 
in  passing,  the  Wilson  law  of  1894,  departed  so  far  from  this 
principle  that  President  Cleveland  allowed  it  to  become  a  law     ^ 
without  his  signature. 

1  See  especially  C.  A.  Beard,  Contemporary  American  History  ;  F.  E.  Haynes, 
Third  Party  Movements  since  the  Civil  War. 


94      THE  GOVERNMENT  OF  THE  UNITED  STATES 

Evasion  of  Although   the    two   great    parties   attempted    to  concentrate 

public  attention  upon  the  tariff,  other  and  more  vital  issues 
were  being  constantly  discussed  and  urged.  These  dealt  with 
economic,  industrial,  and  social  questions.  The  fact  that  the 
old  parties  were  divided  upon  these  issues  and  avoided  making 
clear-cut  declarations  upon  them  caused  the  organization  of 
minor  parties. 

(i)  Green-  One   of   the    questions  growing  out  of  the   Civil  War  was 

cheapPmoney  the  disposition  of  the  United  States  notes,  or  "  greenbacks,"  as 
they  were  popularly  called.  During  the  war  $450,000,000 
had  been  issued,  which  had  received  the  legal-tender  character 
by  act  of  Congress.  An  act  of  1866  had  authorized  their  retire- 
ment and  cancellation,  and  by  1867  their  amount  had  been 
reduced  to  about  $350,000,000,  when  the  opposition  succeeded 
in  checking  further  retirement.  The  theories  which  underlay 
this  opposition  were  but  repetitions  of  the  old  arguments  for 
expansion  of  the  circulating  medium,  which  had  been  urged 
at  different  times  since  the  colonies  were  founded.  Greenbacks 
were  retired  and  the  obligations  were  converted  into  bonds, 
thereby  increasing  the  interest  charges  on  the  national  debt, 
which  led  to  increased  taxation.  At  the  same  time  the  amount 
of  circulating  medium  was  reduced.  As  a  result  coin  increased 
in  value  and  prices  fell.  To  this  perfectly  natural  operation 
of  an  economic  law  was  added  the  panic  of  1873  and  the  sub- 
sequent hard  times.  The  debtor  class  suffered,  while  the  class 
holding  obligations  paying  a  fixed  income  received  relatively 
much  more.  As  a  result  the  friends  of  expansion,  or  the  Green- 
backers,  prevented  further  retirement,  provided  that  notes  once 
paid  into  the  treasury  should  be  reissued,  and  passed  a  bill 
providing  for  their  further  increase.  This  bill  was  vetoed  by 
President  Grant  in  1874.  The  Greenbackers  differed  from  the 
old  parties  not  only  on  the  question  of  the  United  States  notes 
but  on  other  economic  and  social  questions.  Thus,  in  1880, 
which  marked  their  high-water  mark,  their  candidate  having 
received  more  than  three  hundred  thousand  votes,  they  advocated 
labor  legislation  of  an  advanced  type,  regulation  of  interstate 
commerce  for  the  benefit  of  the  shipper,  and  Chinese  exclusion. 
After  1884  the  party  ceased  to  exist  as  a  national  party,  and 


POLITICAL  ISSUES  AND  PARTY  HISTORY          95 

the  greater  part  of  its   principles  in  one  form  or  another  were 
adopted  by  the  newly  formed  People's  party. 

Closely  akin  to  the  financial  ideas  held  by  the  Greenbackers  (a)  silver 
were  those  of  the  Silver  party.    In  1792  silver  and  gold  were  bimetallism 
both  freely  coined  at  the  ratio  of  fifteen  to  one,  which  proved  standa?dld 
too  low  for  gold,  and  consequently  little  was  offered.    In  1834 
the  ratio  was  altered  to  sixteen  to  one,  which  proved  an  over- 
valuation for  gold,  so  that  no  silver  was  offered;  and  by  1873 
the  silver  dollars  had  almost  ceased  to  circulate.    In  that  year  [crime  of 
Congress  demonetized  silver  and  made  gold  the  basis  of  the  l873-' 
monetary  system.    The  result  was  a  still  further  decline  in  the 
price    of    silver   and    an   increasing   demand   on    the    part    of 
the  silver-mine  owners  that  the  government  should  coin  silver 
at  the  old  rate.    This  demand  was  reenforced  by  the  debtor 
class  and  the  farmers,  who  demanded  money  cheap  and  plenty 
with  which  to  meet  their  obligations  and  who  violently  denounced 
the  advantage  that  a  hard,  sound,  and  contracted  currency  gave 
to    the    bondholders.     It    was    the    same    question    which    the 
Greenbackers    had  raised    in   another  form  —  the  question   of 
the  expansion  of  the  currency  for  the  benefit  of  the  debtor 
class  in  order  that  prices  might  rise  and  enable  them  to  pay 
their  obligations  with  greater  ease.    Both  parties  were  divided 
upon  this  issue.    In  1878  the  Bland-Allison  Act  provided  that  [Biand-Aiu- 
the    Secretary  of   the  Treasury  should  buy  not  less  than  two  sonAct^ 
million  nor  more  than  four  million  dollars'  worth  of  silver  a 
month  to  be  coined  into  silver  dollars.    In  1890  the  Sherman  [Sherman 
act  altered  this  to  a  requirement  of  purchasing  4,500,000  ounces  chase1  Act]" 
of   silver  a  month  and  of   issuing   silver  certificates   redeem- 
able in  gold  or  silver  at  the  discretion  of  the  Secretary  of  the 
Treasury.    Since  the  market  rate  of  silver  was  about  twenty- 
seven  to  one  as  compared  with  gold,  this  was  a  pure  expansion 
measure  for  the  debtor  class  and  the  mine  owners.    Moreover, 
as  the  government,   since    1879,   had   been  redeeming  all  its 
obligations  in  gold,  these  certificates  and  silver  dollars,  together 
with    the    United    States    notes,    constituted    what    President 
Cleveland  called   "an  endless  chain,"  which  rapidly  depleted 
the    supply   of   gold   in    the   treasury.    As   a   result    President  [its  repeal", 
Cleveland  was  forced  to  sell  bonds,  and  in  1893  obtained  the 


96      THE  GOVERNMENT  OF  THE  UNITED  STATES 


(3)  Labor 


(4)  Socialist 
Labor  party 


(5)  Socialist 
party 


repeal  of  the  Sherman  law.  The  issue,  however,  was  not 
settled,  and  bimetallism,  or  free  silver,  constituted  one  of  the 
burning  questions  in  the  campaign  of  1896. 

In  1865  a  national  labor  congress  was  held,  and  movements 
toward  the  organization  of  labor  were  begun  in  the  older  and 
more  industrial  regions  of  the  country.  In  1870  political 
parties  known  as  Labor  Reform  parties  nominated  candidates 
for  governor  in  Massachusetts  and  New  Hampshire.  In  1872 
a  national  convention  was  held  at  Columbus  and  a  candidate 
for  the  presidency  was  nominated,  who  polled  only  twenty-nine 
thousand  votes.  The  platform,  among  other  things,  declared  in 
favor  of  restricting  the  sale  of  public  land  to  bona-fide  home 
seekers,  Chinese  exclusion,  an  eight-hour  day  for  government 
employees,  regulation  of  railroad  and  telegraph  rates,  and  the 
subordination  of  the  military  to  the  civil  authorities.  This  early 
attempt  to  form  a  political  party  out  of  labor  failed,  and  the 
reformers  were  absorbed  by  the  Greenbackers,  who  made  more 
extensive  and  liberal  declarations  in  favor  of  labor.  In  1888 
two  labor  factions  nominated  presidential  candidates,  but  between 
them  polled  only  fifty  thousand  votes. 

In  1892  the  Socialist  Labor  party  was  organized,  which  con- 
tinues to  nominate  candidates  but  has  never  polled  a  large  num- 
ber of  votes  —  the  maximum  being  reached  in  1900,  when  its 
candidates  received  more  than  thirty-nine  thousand.  This  party 
is  the  most  advanced  of  all  parties,  and  perhaps  because  of  its 
very  radicalism  it  has  failed  to  unite  the  working  class  against 
the  owners  of  property. 

The  Socialist  party  first  nominated  candidates  in  1900.  This 
party,  although  appealing  to  labor,  was  far  less  radical  than  the 
Socialist  Labor  party.  Indeed,  its  platform  of  1908,  advocating 
graduated  inheritance  and  income  taxes,  universal  suffrage,  the 
initiative  and  referendum,  a  federal  department  of  labor,  popular 
election  of  judges,  and  compulsory  insurance  for  workingmen  con- 
tained few  principles  which  now  would  be  called  socialistic.  This 
party  has  at  times  polled  an  enormous  vote  for  a  minority  party. 
Beginning  with  over  ninety  thousand  votes  in  1900,  it  obtained 
more  than  four  hundred  thousand  in  1908  and  eight  hundred 
thousand  in  1912.  But  although  it  has  succeeded  in  electing  an 


POLITICAL  ISSUES  AND  PARTY  HISTORY  97 

occasional  representative  to  Congress,  it  has  been  almost  negli- 
gible in  presidential  campaigns,  since  it  draws  its  strength  from 
both  parties. 

Just  as  the  Greenbackers  had  championed  the  rights  of  the  (e>  people's, 
farmers,  so  in  the  eighties  the  People's,  or  Populist,  party  was 
organized  for  the  same  purpose.     Farming  seemingly  was  an 
unprofitable  business,  "  .  .  .  wheat  sells  at  from  40  to  50  cents,  Agrarian 
oats   at  from   9  to    12,   and  corn  at   from   10  to   13   cents  a  ° 
bushel,  and  fat  cattle  at  from  i-|-  to  3  cents  a  pound."1    It  was 
impossible  for  the  farmers  to  make  a  living.     In  addition  to 
the  difficulty  of  making  a  bare  living  the  necessity  of  meeting 
the   interest   charges  upon  the   mortgages   or  the  rent  of  the 
farms  was  always   present.2   Three  reasons  were  given   by  the 
farmers  for  their  condition  :  transportation,  land,  money.3 

The  national  government  had  given  lavish  aid  to  the  railroads  Railroads  and 
and  had  stimulated  their  construction,  and  the  railroads  had  been  F 
active  not  merely  in  national  but  in  state  politics.    This  activity 
of  itself  would  not  have  excited  opposition  if  other  grievances 
had  not  been  held  against  the  railroads.    It  was  felt  that  much 
of  the  farmer's  profit  was  eaten  up  in  freight  charges,  which  were 
exorbitantly  high.     It  was   common  knowledge   that  the  roads  Demand  for 
were  giving  rebates,  free  transportation,  and  other  discriminations  JontrcHf11 
to  aid  certain  industries  or  to  prevent  the  growth  of  others.    In-  railroads 
dividuals  or  even  whole  communities  suffered  under  the  power 
of  the  railroads.    The  farmers,  forgetting  that  the  railroads  were 
performing  great  social  and  economic  services,  felt  that  either 
through  national  or  state  action  their  rights  should  be  protected 
and  the  power  of  the  roads  curtailed. 

The  land  question  involved  both  the  lavish  grants  which  the  Land 
government   had   made   to   the   railroads   and   the  land  which 
speculators  held  unimproved  to  sell  at  a  profit.    These  lands  the 
farmers  thought  should  be  thrown  open  for  settlement. 

1  Gladden,  "The  Embattled  Farmers,"  in  the  Forum,  Vol.  X,  p.  315;   F.  E. 
Haynes,  Third  Party  Movements  since  the  Civil  War,  pp.  221-222. 

2  In  Kansas,  in  1890,  out  of  3000  farmers  only  350  owned  their  land  clear  of 
encumbrances,  while  1030  occupied  rented  farms  and  1727  held  farms' under 
mortgage.  —  F.  E.  Haynes,  Third  Party  Movements  since  the  Civil  War,  p.  222 

3  J.  A.  Woodburn,  Political  Parties  and  Party  Problems  in  the  United  States, 
pp.  in  et  seq. 


98      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Financial 
theories 


Patrons  of 
Husbandry 


Farmers' 
Alliances 
form  the 
Populist 
party 


Populist  plat- 
form of  1892 


Regarding  money  the  People's  party  held  the  same  doctrines 
as  the  Greenbackers  —  the  quantitative  theory.  Since  prices 
were  falling  while  interest  and  rent  charges  remained  the  same, 
an  increased  supply  of  money  would  raise  the  prices  and  enable 
the  farmers  to  meet  their  obligations  with  greater  ease. 

In  the  sixties  the  Patrons  of  Husbandry  had  been  organized 
to  alleviate  some  of  the  conditions  which  were  similar  to  those 
in  the  eighties,  and  the  society  had  achieved  a  moderate  amount 
of  success  as  far  as  state  action  alone  could  remedy  them.  The 
Greenback  party,  however,  had  attracted  this  discontented  ele- 
ment to  itself  as  far  as  national  politics  were  concerned.  With 
the  disintegration  of  the  Greenbackers  in  1884  the  Unionist 
party  was  organized  and  polled  nearly  one  hundred  and  fifty 
thousand  votes  in  1888.  But  the  real  organ  of  agrarian  discontent 
was  the  People's  party,  or  the  Populists.  This  was  the  outgrowth 
of  the  National  Farmers'  Alliance  and  Industrial  Union,  which 
originated  in  Texas  in  1875,  and  of  the  National  Farmers'  Alli- 
ance of  Illinois,  which  was  founded  in  1880.  These  societies 
developed  rapidly  during  the  eighties  and  by  1890  claimed  a 
membership  of  more  than  three  million  members.  At  first  the 
Alliance  professed  to  be  nonpolitical,  but  to  attain  its  ends  it 
entered  state  politics  and  captured  the  Democratic  organiza- 
tions in  many  of  the  Western  states,  while  in  the  South  the 
Democratic  organization  adopted  its  doctrines. 

In  1892  a  nominating  convention  was  held  at  Omaha,  and 
the  most  radical  platform  ever  put  forward  by  an  American 
party  was  adopted.  Concerning  money,  the  free  and  unlimited 
coinage  of  silver  at  the  ratio  of  sixteen  to  one  was  advocated, 
in  addition  to  the  emission  of  paper  United  States  notes  to  take 
the  place  of  the  national  bank  notes  founded  upon  securities, 
until  the  circulating  medium  of  the  country  should  equal  fifty 
dollars  per  capita.  A  graduated  income  tax  was  urged  to  force 
the  holders  of  great  wealth  to  contribute  more  than  their  pro- 
portional share  to  the  expenses  of  the  government.  All  land 
held  by  railroads  in  excess  of  their  actual  needs  and  all  land  held 
by  aliens  was  to  be  reclaimed  by  the  government.1  As  a  result 

1  J.  A.  Woodburn,  Political  Parties  and  Party  Problems  in  the  United  States, 
pp.  116-117. 


POLITICAL  ISSUES  AND  PARTY  HISTORY          99 

of  the  campaign  of  1892  there  were  over  a  million  votes  cast 
for  the  presidential  candidates  of  the  party,  giving  them  twenty- 
two  electoral  votes,  while  the  party  was  represented  in  Congress 
by  three  senators  and  eleven  representatives. 

THE  CAMPAIGN  OF  1896 

It  was  the  culmination  of  these  various  movements  that  makes 
this  campaign  so  important.   From  1893  to  1897  President  Cleve- 
land, representing  the  conservative  Eastern  wing  of  the  Demo- 
cratic party,  had  alienated  the  radical  sections  of  the  South  and  split  in  the 
West.    When  the  convention  met  at  Chicago  the  radicals  were 
in  control  and  forced  the  adoption   of  a  platform  not  merely 
radical  in  tone  but  everywhere  filled  with  class  feeling.     The  (i)  against 
"Crime  of  1873  "  in  the  demonetization  of  silver  was  held  re-  capltal 
sponsible  for  the  fall  of  prices,  the  increase  of  debts,  public  and 
private,  and  the  enrichment  of  the  moneyed  class.   The  McKinley  (t)  against 
tariff  was  called  a  prolific  breeder  of  trusts.    On  the  money  ques-  pro1 
tion  tlje  platform  declared  for  the  free  and  unlimited  coinage  of  (3)  for  free 
silver  at  the  ratio  of  sixteen  to  one  without  waiting  for  the  aid  s 
or  consent  of  any  nation.    A  scarcely  veiled  attack  was  made  (4)  for  in- 
upon  the  Supreme  Court  by  the  declaration  that  it  was  the  duty 
of  Congress  to  obtain  the  reversal  of  the  decision  declaring  the 
income  tax  unconstitutional.  The  use  of  injunctions  by  the  federal  (5)  against 
courts  was  unsparingly  denounced.    The  convention  chose  as  its 
candidates   William  Jennings    Bryan,   a  young  man  who  had 
served  two  terms  in  Congress  and  who  had  thrilled  the  conven- 
tion with  his  oratory,  and  Arthur  Sewall  of  Maine,  a  rich  ship- 
builder and  ironmaster.    The  People's  party  accepted  Bryan  as 
their  candidate  for  president,  but  nominated  Thomas  E.  Watson 
of  Georgia  for  vice  president.   These  candidates  by  no  means 
obtained  the  full  party  vote,  for  the  Democrats  attached  to  sound- 
money  principles  held  a  dissenting  convention  and  nominated 
candidates  who  obtained  more  than  one  hundred  thousand  votes. 
In  addition  many  Democrats  bolted  the  ticket  and  voted  for  the 
candidates  of  other  parties. 

The  Republican  convention  was  under  the  control  of  the  con- 
servatives.   It  chose  as  its  candidate  William  McKinley  of  Ohio, 


100    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Conservative 
platform  of 
the  Republi- 
cans 


The  cam- 
paign of  1896 


Issues  not 
settled  by 
1896  but  post- 
poned by  War 
with  Spain 


who  was  known  as  a  bimetallist,  but  whose  chief  claim  to  fame 
rested  upon  a  highly  protective  tariff  which  bore  his  name.  The 
adoption  of  the  platform  was  not  accomplished  without  dissent, 
and  Senator  Bland  with  almost  one  hundred  delegates  who  favored 
silver  seceded  from  the  convention.  The  money  planks,  which, 
it  was  asserted,  were  adopted  somewhat  against  McKinley's  wish, 
opposed  free  coinage  of  silver  except  by  international  agreement 
and  favored  keeping  all  forms  of  currency  at  a  parity  with  gold. 
On  other  points  the  platform  was  colorless. 

Although  the  Republican  leaders  had  hoped  to  focus  public 
attention  upon  the  tariff  the  position  of  the  Democrats  forced  the 
monetary  issue  to  the  front.  Furthermore,  the  radical  nature  of 
the  Democratic  platform  and  its  frank  appeal  to  class  feeling 
tended  to  divide  the  parties  rather  sharply  along  class  lines.  The 
Republicans  were  fortunate  both  in  their  leader  and  his  manager, 
Marcus  A.  Hanna,  and  by  appeals  to  the  conservative  instincts  and 
threats  of  unemployment  in  case  of  Democratic  success,  together 
with  a  use  of  money  more  lavish  than  ever  imagined  possible 
in  previous  campaigns,  carried  the  day.  McKinley  polled  more 
than  seven  million  popular  votes  and  won  two  hundred  and 
seventy-one  electoral  votes,  while  Bryan  obtained  six  and  one- 
half  million  popular  votes  and  only  one  hundred  and  seventy-six 
electoral  votes.  Even  had  the  popular  vote  of  all  the  minority 
parties  been  added  to  the  Democratic  vote  the  Republicans  would 
still  have  had  a  plurality  of  about  three  hundred  thousand.  The 
victory  as  far  as  the  presidential  election  was  concerned  was 
decisive.  In  Congress,  moreover,  the  Republicans  apparently 
had  a  safe  majority,  although  one  by  no  means  united  on  the 
money  question. 

Although  the  conservatives  had  triumphed,  the  large  popular 
vote  cast  for  the  Democratic  and  Populist  candidates  showed  that 
new  issues  were  entering  into  political  life.  Their  discussion  was 
postponed  by  the  war  with  Spain  and  the  consequent  problems 
of  expansion  and  imperialism.  These  questions,  coupled  with 
the  attempted  revival  of  the  silver  question,  were  the  chief  issues 
in  the  campaign  of  1900.  The  Republicans,  although  divided 
upon  imperialism,  emphasized  the  tariff  and  sound  money  and 
won  the  election  by  even  a  larger  plurality  than  before. 


POLITICAL  ISSUES  AND  P ARTY :' &J&TQ& Y     /*c* 


THE  GROWTH  OF  DISSENT^  '          '-"i3**  \'*\  ;/V, 

The  period  since  1 896  most  markedly  differs  from  the  earlier  Demand  for 
periods  of  the  political    life  of   the  country  in  two  respects  :  Sntrorof1* 
large  economic  interests,  or  "big  business,"  have  very  frankly  n'egsg,  ,busi~ 
attempted  to  control  the  government.     This  attempt  has  been 
met  by  a  counter  attempt  to  control  business,  first  by  the  ordi- 
nary constitutional  legislative  methods,  but  finally  by  attempted 
alterations  in  the  system  of  government. 

From  1896  to  1907  the  country  was  very  prosperous.  Trade  Prosperity 
expanded,  partly  as  a  result  of  the  policy  of  imperialism,  and 
manufacturing  more  than  kept  pace  with  trade.  The  salient 
characteristic  of  business  was  the  organization  of  huge  corpora- 
tions. These  in  some  instances  followed  the  plan  of  the  Stand- 
ard Oil  Trust  of  the  eighties,  by  which  the  stock  of  the 
competing  companies  was  turned  over  to  trustees  to  manage  and 
the  profits  paid  pro  rata  to  the  original  holders.  More  often, 
however,  the  organization  was  effected,  as  in  the  case  of  the 
United  States  Steel  Corporation,  by  out-and-out  purchase.  In 
either  case  competition  was  stifled,  less  prosperous  concerns 
were  forced  to  the  wall,  and  partial  monopolies  resulted.  More- 
over, in  these  consolidations  large  amounts  of  stock  were  'issued 
for  which  there  was  no  actual  capital  investment.  These  huge 
amounts  of  stocks  formed  a  tempting  field  for  speculators.  Sim- 
ilar consolidations  were  followed  in  the  railroads,  and  in  the 
attempts  to  pay  dividends  upon  the  watered  stock  the  rates  were 
raised  to  exorbitant  figures.  Finally,  business  meddled  in  politics, 
not  merely  for  the  general  good  but  for  special  favors,  and  too 
often  gained  them  by  corrupt  means. 

The  demand  for  the  regulation  of  the  railroads  had  originated  Demands  for 
in  the  Granger  movement,  had  been  espoused  by  the  Green- 
backers,  and  had  been  partially  solved  by  the  establishment  of  the 
Interstate  Commerce  Commission  in  1887.  The  supposed  powers 
of  the  commission  were  greatly  curtailed  by  the  decisions  of  the  The  inter- 
courts.    Prohibition  of  monopoly  was  attempted  by  the   Sher- 
man  Anti-Trust  Law  of  1890,  which  declared  illegal  every  com- 
bination  in  restraint  of  foreign  or  interstate  commerce.     Little  Anti-Trust 
conscientious  effort  was  made  to  enforce  either  law  until  the 


THE  GOVERNMENT  OF  THE  UNITED  STATES 


Failure  to 
get  relief  by 
legislation 
leads  to  de- 
mands for 
alteration  of 
the  political 
parties  and 
amendment 
to  the  Con- 
stitution 


Administra- 
tion of  Taft 
and  revolt  in 
Republican 
party 


secohtl  ;Rboscieltadmjm1stration.  During  this  period  the  Interstate 
'Commerce  law  was  amended  by  the  Hepburn  Act  of  1906  and 
was  extended  to  telegraph  and  telephone  companies,  pipe  lines, 
express  companies,  sleeping-car  companies,  bridges,  ferries,  and 
railway  terminals  ;  and  during  this  administration  numerous  prose- 
cutions of  large  combinations  were  instituted  under  the  Anti- 
Trust  law.  These  failed  to  satisfy  altogether  the  demands  of  a 
constantly  growing  element  in  both  parties. 

It  was  hoped  that  the  election  of  1900  would  end  the  possi- 
bility of  serious  threat  from  the  radicals  who  composed  the 
Populist  party ;  indeed,  in  the  national  legislature  the  party  had 
only  four  senators  and  nine  representatives.  By  1904  the  organ- 
izations of  the  old  parties  were  firmly  controlled  by  leaders  who 
had  little  sympathy  with  such  ideas.  Failing  to  get  satisfaction 
from  either  of  the  great  parties,  and  from  bitter  experience  doubt- 
ing the  legislatures  of  the  states,  schemes  were  proposed  to  shake 
the  control  of  the  party  organizations  and  give  to  the  people  a 
more  direct  participation  in  the  government.  These  measures 
group  themselves  around  the  initiative,  referendum,  and  recall, 
but  also  include  the  movements  for  direct  primaries  in  place  of 
the  nominating  conventions,  the  control  by  law  of  the  party 
organizations,  and  the  limitation  of  the  use  and  the  sources  of 
money  in  political  campaigns.  In  addition  the  Constitution  was 
altered  directly  by  the  amendment  providing  for  the  direct  elec- 
tion of  United  States  senators.  Most  alarming  of  all,  the  power 
of  the  courts  to  declare  statutes  unconstitutional  was  attacked. 
This  arose  from  the  fact  that  many  of  the  laws  passed  by  the 
legislatures  of  the  states  to  remedy  social  or  economic  conditions 
were  declared  unconstitutional  by  the  state  courts  or  the  Supreme 
Court  of  the  United  States.  To  prevent  this  the  device  of  the 
recall  of  judges  or  the  recall  of  judicial  decisions  was  invented, 
and  the  former  was  adopted  by  several  states.  Most  of  these  move- 
ments had  their  origin  in  the  agricultural  regions  of  the  West  and 
spread  eastward,  thoroughly  alarming  the  conservative  politicians. 

The  administration  of  President  Taft  (1909-1913)  failed  to 
satisfy  the  discontented  elements.  The  tariff  was  revised  but 
not  substantially  lowered,  as  was  hoped.  Many  anti-trust  prosecu- 
tions against  corporations  were  successfully  concluded  and  much 


POLITICAL  ISSUES  AND  PARTY  HISTORY        103 

good  legislation  was  passed.  But  the  Republican  party  was 
divided.  A  radical,  or  progressive,  element  was  demanding  the 
solution  of  the  issues  just  described,  in  a  manner  not  acceptable  to 
the  more  conservative  leaders.  President  Taft  himself,  although 
liberal  in  particular  laws,  was  resolutely  opposed  to  the  adoption 
of  any  of  the  constitutional  changes  looking  towards  a  more  direct 
democracy.  In  1911  the  second  Congress  of  his  administration 
was  Democratic,  thus  showing  the  popular  trend  of  public  opinion. 

The  campaign  of  1912  is  interesting  in  many  respects.    For  preelection 
the  first  time  the  device  of  the  direct  primary  was  tried  in  many  JJJ^iaJ  Jo 
states.    By  this  the  people  expressed  their  preference  directly  in  ^Jjjjjj1011  of 
the  choice  of  delegates  to  the  nominating  convention,  and  these  Moose," 
were  pledged  to  one  candidate  or  another.    In  the  Republican  sive,°party 
party  Mr.  Roosevelt  and  Mr.  Taft  contested  the  nomination,  and 
although  Roosevelt  obtained  a  majority  of  the  delegates  chosen 
in  the  primaries,  Taft  more  than  held  his  own  in  the  states 
where  the  delegates  were  chosen  by  conventions,  and  in  addition 
he  continued  to  hold  the  national  committee  and  the  organiza- 
tion of  the  party.    The  convention  nominated  Taft,  and  Roose- 
velt and  his  supporters  seceded  and  formed  a  Progressive  party. 
Under  his  lead  the  Progressive  party  made  a  remarkable  showing, 
gaining  more  than  four  million  votes,  nearly  a  million  more  than 
the  Republicans,  and  obtaining  eighty-eight  votes  in  the  electoral 
college  to  the   Republicans'  eight.    The  Democrats,  however,  Democratic 
obtained  more  than   six  million  votes  and  four  hundred  and 
thirty-five  electoral  votes.    Another  interesting  phenomenon  was 
that  in  spite  of  the  fact  that  both  the  Democratic  and  Progres- 
sive parties  put  forth  platforms  distinctly  socialistic  and  attrac- 
tive to  the  radicals,  the  Socialist  party  more  than  doubled  its 
vote,  although  it  failed  to  carry  any  state. 

The  Democrats  nominated  Governor  Wilson  of  New  Jersey  wiisonand 
on  a  platform  which  advocated  tariff  for  revenue  only,  dissolu- 
tion  of  trusts  and  criminal  prosecution  of  the  officers,  and  addi- 
tional legislation  to  make  it  impossible  for  private  monopoly  to 
exist  in  the  United  States.  In  his  campaign  Wilson  outlined 
his  economic  theories,  which  he  maintained  would  establish 

The  New  Freedom."    Business,  no  matter  how  large,  was  not 
to  be  disturbed  as  long  as  it  was  not  guilty  of  unfair  practices. 


104    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Wilson's 
first  admin- 
istration 


Economic 
legislation 


Foreign 
affairs 


Wilson's 
second  ad- 
ministration 
—first  half 


Extension  of 
federal  con- 
trol 


Trusts,  however,  had  been  guilty  of  unfair  practices  and,  since 
they  were  the  attempt  not  to  face  but  to  avoid  competition,  were 
to  be  destroyed.  The  legislation  he  succeeded  in  passing  during 
his  first  term  carried  out  his  ideas  and  provided  for  a  trade  com- 
mission to  supervise  interstate  business,  while  the  Anti-Trust  act 
was  amended  to  define  and  prohibit  unfair  practices.  Indeed, 
during  his  first  administration  more  measures  of  prime  impor- 
tance were  passed  than  during  any  other  equal  period ;  the  tariff 
was  revised,  the  Federal  Reserve  banking  system  established, 
the  Interstate  Commerce  Law  amended,  the  Federal  Trade  Com- 
mission established,  and  the  Anti-Trust  law  amended.  Many  of 
these  measures  were  satisfactory  to  the  disaffected  of  both  parties, 
and  he  was  reflected,  although  by  a  greatly  reduced  majority. 

The  last  half  of  Wilson's  first  administration  was  complicated  by 
the  European  war.  He  succeeded  in  preserving  absolute  neutrality, 
while  at  the  same  time  bringing  to  his  point  of  view  the  public 
opinion  of  the  different  sections  of  the  country.  He  was  bitterly 
criticized  because  he  neither  intervened  nor  hastened  measures 
for  preparedness,  but  when  it  became  necessary  for  the  United 
States  to  enter  the  war  he  brought  a  practically  united  country 
behind  him.  Although  the  Republicans  found  countless  flaws  in 
the  details  of  his  policies,  his  general  aims  were  everywhere 
approved.  He  succeeded  in  attaching  the  radical  and  labor 
element  to  his  policies  by  fair  treatment  or,  according  to  the 
Republicans,  by  surrendering  to  them.  Abroad,  both  among  the 
Allies  and  even  in  Austria  and  Germany,  he  was  looked  upon 
as  one  of  the  most  authoritative  leaders  in  the  war. 

Wilson's  second  administration  was  sharply  divided  by  the 
signing  of  the  armistice,  November  n,  1918.  During  the  first 
half  of  his  administration  the  Democrats  controlled  both  branches 
of  Congress,  and  the  plans  of  the  administration  were  adopted 
with  little  difficulty,  sometimes  almost  unanimously.  Indeed,  for 
a  time  it  seemed  as  if  there  was  truth  in  the  popular  phrase 
"  Politics  has  adjourned."  The  war  plans  of  the  administration 
involved  a  greater  extension  of  the  federal  power  than  was  ever 
experienced  before.  The  railroads  were  taken  over  by  the  gov- 
ernment, the  price  of  wheat  was  guaranteed  to  the  producer, 
the  sale  of  wheat,  sugar,  and  other  commodities  necessary 


POLITICAL  ISSUES  AND  PARTY  HISTORY        105 

for  food  and  industry  was  controlled  by  federal  licenses,  and  all 
industry  and  finance  felt  the  power  of  the  government.  The 
War  Labor  Board  attempted,  with  considerable  success,  to  prevent 
strikes  and  lockouts  and  to  keep  the  essential  industries  operating  » 

at  full  capacity.  In  so  doing  organized  labor  was  recognized  as 
never  before  and  was  deferred  to  in  the  determination  of  wages  and 
conditions  of  employment.  In  the  conduct  of  foreign  affairs  and 
the  negotiations  which  led  to  the  cessation  of  hostilities  President 
Wilson  offended  the  Senate  by  not  taking  them  into  his  confi- 
dence but  by  standing  upon  his  strict  constitutional  prerogatives. 

With  the  end  of  the  war,  conditions  were  suddenly  changed.  Wilson's 
The  Republicans  controlled  both  Houses  of  Congress,  and  the  SStration 
coming  of  peace  put  an  end  to  the  necessity  of  seeming  una-  ~~ second  half 
nimity.    Both  domestic  and  foreign  problems  were  pressing  for 
settlement,  and  the  relations  between  the  President  and  Congress 
were  strained.    The  Senate  bitterly  resented  its  exclusion  from 
any  share  in  the  negotiations  for  the  peace  treaty  and  viewed  Peace  treaty 
with  hostile  eyes  the  proposed  League,  of  Nations,  as  well  as 
many  of  the  settlements  made  by  the  treaty.    Domestic  problems  Domestic 
arising   from   the   inevitable  reconstruction-after-war  conditions  pro1 
were  pressing  for  solution.    Chief  among  these  was  the  question 
of  the  high  cost  of  living  and  the  consequent  necessary  wage 
adjustments  and  the  question  of  the  return  of  the  railroads  to 
the  stockholders.   Although  there  was  little  unemployment,  and 
industry  was  prospering  in  every  field,  there  was  a  feeling  of  dis- 
content and  uncertainty  owing  to  the  high  prices  and  the  proposal 
that  labor  should  have  an  increasing  voice  in  the  control  of 
industry. 


CHAPTER  VI 


Purpose  of 
party  organ- 
ization to  ob- 
tain control 
of  the  gov- 
ernment by 
the  election 
of  officers 
necessitates  : 


(i)  Nomina- 
tion 


(2)  Declara- 
tion of 
principles 


Why  there 
are  no  state 
parties 


PARTY  ORGANIZATIONS 

The  purpose  of  party  organization  is  to  control  the  govern- 
ment. This  control  is  exercised  by  obtaining  possession  of  the 
offices.  The  primary  aim,  therefore,  of  a  party  is  to  elect  its 
members  to  office.  But  the  election  is  only  the  third  and  last 
duty  of  a  party,  and  in  some  regions  where  one  party  has  the 
overwhelming  majority  it  is  the  least  troublesome  duty.  Before 
the  election  must  come  the  selection  of  the  candidate  who  shall 
be  the  choice  of  the  party.  This  selection  is  nomination.  After 
the  nomination  has  been  made  the  candidate  must  make  his 
appeal  to  the  voters  ;  he  jnust  state  for  what  he  stands  ;  he  must 
be  popular  enough  to  attract  votes.  This  is  called  the  campaign. 
It  is  possible  therefore  to  consider  the  purpose  of  the  party 
organization  under  three  divisions,  —  nomination,  campaign,  and 
election.  Another  duty  may  precede  even  the  nomination.  This 
is  the  declaration  of  principles,  qr,  as  it  is  called,  the  framing  of 
the  platform.  At  times  this  becomes  very  important ;  but  more 
often  in  national  affairs  the  platforms  attempt  to  avoid  contro- 
versial subjects  and  to  restate  in  well-sounding  phrases  the  past 
position  of  the  party.  Furthermore,  the  candidates,  when  nomi- 
nated, may  ignore  the  platform  and  stress  other  principles  or 
even  make  a  new  declaration  of  political  faith  on  an  entirely  new 
issue.  In  state  affairs  the  platforms  are  of  less  importance  and 
generally  contain  little  more  than  a  fervid  indorsement  of  the 
platforms  of  the  national  parties. 

Although  the  Constitution  leaves  large  spheres  of  action  to  the 
state,  there  have  never  been  any  important  state  parties  for  any 
long  duration.  'Local  issues  have  sometimes  caused  the  formation 
of  a  temporary  organization,  which  has  altered  the  balance  of  the 
parties  within  the  state.  In  some  even  less  frequent  instances 
these  temporary  organizations  have  succeeded  in  gaining  control 
of  the  state  government,  but  this  is  exceptional.  More  often 

106 


PARTY  ORGANIZATIONS  107 

they  seek  to  have  their  issues  adopted  by  one  of  the  regularly 
organized  parties  and  to  accomplish  their  aims  through  that 
party.  In  some  instances  when  an  issue  has  affected  several 
states  the  national  parties  have  adopted  it  in  their  platforms. 
Generally,  however,  as  the  study  of  minor  parties  has  shown,  a 
purely  local  party  or  one  framed  upon  a  single  issue  has  little 
chance  of  obtaining  any  very  wide  support  and  still  less  chance 
for  success. 

The  party  system  in  the  United  States  originated  over  national  Party  system 
issues  and  developed  national  parties.    Theoretically  and  logically 
these  national  parties  have"  only  a  remote  connection  with  the 
political  issues  in  the  states  and  even  less  with  those  in  the 
smaller  political  divisions.    Experience  and  efficiency  as  well  as 
political  expediency  arid  practical  convenience  have  demonstrated 
the  mutual  advantage  of  the  closest  possible  union  between  the  connection 
two.    Thus  a  city  government,  being  almost  at  the   mercy  of  national 
the  state  legislature,  finds  its  way  far  more  smooth  if  the  party  JJJ^^fJJ1" 
in  power  in  the  city  is  the  same  as  that  of  the  majority  in  the  local  issues 
legislature.     Formerly,  when  the  senators  were  chosen  by  the 
state  legislatures,  the  national  parties  saw  that  they  must  control 
the  state  legislatures  in  order  to  obtain  a  majority  in  the  Senate. 
Since  the  adoption  of  the  Seventeenth  Amendment,  by  which 
the  senators  are  elected  by  popular  vote,  this  necessity  has  les- 
.sened,  but  one  of  practical  political  convenience  has  arisen.    It 
is  easier,  simpler,  and 'far  more  efficient  to  utilize  an  already 
existing  and  well-working  organization  than  to  extemporize  one 
every  six  years. 

The  organization  of  the  party  system  in  the  United  States  is  party  system 
federal  like  the  government.  At  the  top  are  the  permanent  organization 
national-party  organizations  for  the  purpose  of  electing  the 
president.  In  each  state  there  are  the  state  organizations  which 
cooperate  in  the  election  of  the  president,  but  which  are  con- 
stantly concerned  in  the  carrying  of  the  state  for  the  party. 
In  each  congressional  district  there  may  be  a  district  organiza- 
tion which  works  with  the  national  and  state  organizations  to 
elect  representatives,  while  in  the  counties,  cities,  towns,  and 
wards  there  are  still  smaller  organizations,  all  of  which  seek 
primarily  to  elect  officers  belonging  to  their  national  party  and 


108    THE  GOVERNMENT  OF  THE  UNITED  STATES 

which,  at  state,  congressional,  senatorial,  and  national  elections, 
are  found  working  for  the  candidates  of  their  party.  The  whole 
party  organization  may  be  compared  to  a  series  of  wheels  all 
geared  together,  the  national  organization  revolving  in  a  four- 
year  cycle  and  each  of  the  others  in  its  own  cycle,  as  determined 
by  the  frequency  of  elections. 

Nomination  The  selection  of  the  party  candidate  is  the  most  important 
step  in  the  political  cycle,  and  the  development  of  the  nomina- 
ting procedure  has  had  an  interesting  history.1  In  colonial  days, 
and  to  a  less  extent  after  the  formation  of  the  national  govern- 
ment, the  candidates  were  sometimes  self-nominated.  In  a  letter 
printed  in  the  newspapers  the  would-be  candidate  announced 
himself  and,  over  his  own  signature,  asked  for  the  support  of 
his  fellows.  More  often,  however,  a  group  of  the  candidate's 
friends  put  his  name  forward.  This  informal  gathering  of  party 
leaders  is  the  germ  from  which  the  whole  complex  party: 
organization  developed,  and,  indeed,  in  spite  of  the  law  and 
the  legally  established  methods  is  still  utilized  and  is  often 
able  to  override  or. control  the  more  formal  procedure. 

The  caucus  From  these  small  conferences  the  caucus  developed.  In 
Boston,  in  1763,  the  caucus ^jaiil  jeu^ly  "  ascertain  times 
in  the  garret  of  Tom'Dawes,"2  and  its  members  were  admitted 
only  after  close  scrutiny.  At  these  meetings  it  was  decided  for; 
what  candidates  the  influence  of  the  caucus  should  be  exerted, 
*  and  committees  were  appointed  to  solicit  votes.3 

Other  clubs  for  similar  purposes  were  held  in  different  parts 
of  Boston,  and  this  method  of  nomination  with  slight  variations 
spread  through  New  England.  Outside  of  New  England  similar 
meetings  were  held,  not  always  secret,  which  were  called 
primaries.  As  the  Revolution  approached,  the  self-constituted 

1  For  a  full  treatment  of  this  subject  see  F.  W.  Dallinger,  Nominations  for 
Elective  Office. 

2  John  Adams,  Works  (ed.  1850),  Vol.  II,  p.  144. 

8  The  following  votes  of  the  Boston  caucus  given  in  Wells,  Life  of  Samuel 
Adams,  Vol.  I,  p.  471,  illustrate  the  procedure  : 

"Voted,    That   this   body   will   use  their  influence  that  Thomas   Gushing, 
Samuel  Adams,  John  Hancock,  and  William  Phillips  be  Representatives  for  the  i 
year  ensuing. 

"Voted  —  That  Gibbons  Sharp,  Nathaniel  Barber  &C.  .  .  be  a  committee  to 
distribute  votes  for  these  gentlemen."  —  Quoted  by  Dallinger,  p.  10 


PARTY  ORGANIZATIONS  109 

of  correspondence  used  their  influence  to  nominate 
"  honest  men '  to  the  colonial  assemblies,  but  after  the  war 
these  committees  were  disbanded.  Nominations  for  local  offices 
in  towns  and  cities  were  made  by  the  caucus,  but  this  method 
proved  increasingly  unsatisfactory  as  the  population  increased, 
and  became  impossible  in  larger  territorial  districts.  To  meet 
this  need  county  or  district  conventions  were  held  composed  Theconven- 
of  delegates  chosen  by  voters  in  the  wards  or  towns.  This 
convention  system  for  county  officers  and  representatives  to 
Congress  developed  almost  contemporaneously  in  Pennsylvania 
and  Massachusetts  about  1800. 

The  organization  of  the  federal  government  made  the  election  The  congres- 
of  national  officers  necessary.  The  methods  of  the  colonial 
caucus  were  insufficient  'for  the  nomination  of  a  candidate  to  be 
elected  by  thirteen  states.  For  the  first  two  elections  Washington 
was  by  common  consent  the  sole  candidate  for  the  presidency, 
but  the  scattering  votes  of  the  electors  showed  that  there  was 
no  unanimity  for  the  vice  presidency.  Not  until  1800  was  there 
any  formal  method  adopted,  and  then  meetings  of  the  party 
members  in  Congress  were  held."  This  was  known  as  the 
legislative  caucus,  and  was  followed  until  1824 ;  from  Con- 
gress it  spread  to  the  states.  In  neither  national  nor  state  politics 
did  it  meet  with  unchallenged  satisfaction. 

As  early  as  1 800  one  writer  denounced  the  caucus  as  follows  :  criticism  of 

the  Congres- 
If  anything  will  arouse  the  freemen  of  America,  it  must  be  the  sionai  caucus 

arrogance  of  a  number  of  members  of  Congress  to  assemble  as  an 
electioneering  caucus  to  control  the  citizens  in  their  rights.  .  .  .  Under 
what  authority  did  these  men  pretend  to  dictate  their  nomination.  .  .  . 
Do  we  send  members  to  Congress  to  cabal  once  in  four  years  for 
President?  .  .  .  After  Congress  have  accomplished  their  legislative 
business  have  they  a  right  to  dictate  in  the  choice  of  the  executive  ?  If 
so,  what  an  imposition  upon  the  "  people  "  to  talk  about  the  freedom 
of  election,  or  what  consequence  is  it  that  the  state  legislature  should 
concern  themselves  in  the  mode  of  choosing  electors.  .  .  . 1 

Nevertheless  the  caucus  was  continued  from  1800  until  1824. 
Several  reasons  explain  this.  From  1820  to  1824  the  Federalist 

1  Benjamin  Austin,  Constitutional  Republicanism  as  opposed  to  Fallacious 
Federalism,  pp.  87,  88,  quoted  by  Dallinger,  p.  16. 


no  THE  GOVERNMENT  OF  THE  UNITED  STATES 


Nomination 
by  state 
legislatures 


State  nom- 
inating con- 
ventions 


party  was  disorganized,  while  in  the  Republican  party  there  was 
little  opposition  to  the  Virginia  dynasty, -^Jefferson,  Madison, 
Monroe.  In  1816,  however,  the  caucus  very  nearly  nominated 
William  H.  Crawford,  a  man  whom  the  people  at  large  had 
never  thought  of  for  the  presidency.  The  possibility  of  such 
an  accident  aroused  the  members  of  both  parties,  and  although 
Monroe  received  the  caucus  nomination  and  was  elected  in 
1816  and  1820,  it  was  a  distinct  handicap  to  his  candidacy  that, 
in  1824,  Crawford  was  the  choice  of  a  small  caucus.1 

After  the  decline  of  the  caucus,  state^>legislatures_began  to 
nominate  candidates.  This  was  accomplished  either  'by  the 
legislature  acting  in  its  official  capacity  by  the  passage  of  joint 
resolutions  or  by  a  caucus  of  the  party  members  of  both  Houses. 
In  either  case  the  attempt  was  made  to  put  before  the  country 
a  candidate  supported  by  a  local  section  of  the  party  and  to  spread 
its  action  among  the  states.  This  method,  originating  in  the 
nomination  of  Jackson  by  the  Tennessee  legislature  in  1822,  was 
continued  untili832,  when  the  aSrrventkmrsystem  was  adopted.2 

One  other  method  of  nomination  was  tried  before  the  system 
of  national  nominating  conventions  was  finally  developed.  This 
was  nomination  ^j^Mte^c^nyention.  It  has  been  pointed  out 
that  for  districts  larger  than  the^town  and  city  the  local  caucus 
proved  unsatisfactory  and  that,  about  1800,  the  use  of  county 
conventions  for  the  nomination  of  county  officials  and  congress- 
men was  adopted.  In  1828  the  state-convention ,  idea  was 
applied  to  the  presidential  candidates,  and  Jackson  and  Calhoun 
were  formally  nominated  by  a  Pennsylvania  convention.  This 
use  of  state  conventions  has  continued  to  the  present  day ;  not, 
however,  to  nominate  the  candidates,  but  to  instruct  the  dele- 
gates and  (before  the  days  of  the  direct  primary)  to  choose 
them,  and  finally  to  indorse  the  candidates  chosen  by  the 
national  convention. 

Of  the  various  methods  of  nomination  for  either  local  or 
state  offices,  that  of  the  nominating  convention  has  aroused  the 

1  Out  of  two  hundred  and  sixteen  Republican  members  only  sixty-six  attended. 

2  F.  W.  Dallinger,  Nominations  for  Elective  Office,  p.  31,  finds  evidence 
that  nomination  by  the  legislature  was  used  spasmodically  in  three  states  as 
late  as  1844. 


PARTY'  ORGANIZATIONS  1  1  1 

least  opposition  and  proved  the  most  satisfactory.  In  1831  it  National 
was  adopted  by  the  Anti-Masonic  party,  and  in  1832  conventions 
for  both  Democratic  and  National  Republican  parties  were  held. 
From  that  day  to  the  present  there  has  been  little  change  in 
procedure,  and  substantially  the  same  methods  are  followed  by 
all  parties,  whether  national  or  local.  Indeed,  the  convention 
as  a  means  of  obtaining  a  candidate  satisfactory  to  the  party  is 
distinctly  an  American  invention  and  one  of  the  strongest  links 
in  the  party  organization. 

The  national  nominating  conventions  are  the  supreme  organs  National 
of  the  parties.   While  in  session  they  are  supreme  not  merely  in 
choosing  candidates  and  in  framing  platforms  but  in  determin- 
ing rules  for  party  conduct.     But  their  active  life  lasts  at  most 
less  than  a  week  every  four  years,  and  parties  could  not  exist  if 
their  sole  organizations  were  confined  to  such  brief  and  infre-  (i)  The  con- 
quent  manifestations  Of  authority.   The  real,  effective  organiza- 
tions  are  the  party  conimittees.     These  range  in  importance  (a)  The  com- 
from  the  national  committees,  charged  with  the  conduct  of  the 
presidential  campaign,  down  to  the  ward  committees  in  the  cities. 

Technically  and  legally  there  are  only  two  sets  of  committees 
charged  with  the  election  of  federal  offrc^m—  the  national  com- 
mittees, which  conduct  the  presidential  campaigns,  and  the 
congressional  committees,  which  attempt  to  obtain  as  large  a 
representation  as  possible  in  Congress.  Since,  however,  there  Relation  of 
are  no  state  parties  as  such,  the  member!  of  the  national  parties  a^  testate 


within  the  states'  form  organizations  to  perform  the  necessary 
party  functions  for  the  government  of  the  states.  National  and  party 
state  parties  are  generally  the  same  and  bear  the  same  names, 
frutjnational  andjstate  party  organizations,  a  re  separate  .^aricldis- 
tinct  and^perform  differentfunctions.  Yet  since  both  sets  of 
organizations  are  working  upon  the  same  set  of  individuals  for 
the  same  end,  —  the  success  of  the  party  —  both  sets  of  organi- 
zations are  dependent  upon  each  other.  Legally  and  actually  the 
national  and  state  committees  are  independent  of  each  other; 
practically  they  work  in  harmony,  and  within  their  spheres  of 
activity  the  state  committees  perform  functions  necessary  for 
the  success  of  the  national  committees.  Just  as  every  citizen 
lives  under  a  dual  government  and  is  both  a  citizen  of  the 


112    THE  GOVERNMENT  OF  THE  UNITED  STATES 

United  States  and  of  the  state  in  which  he  resides,  so  a  man  is 
a  member  of  both  a  national  party  organized  for  the  election  of 
president,  senators,  and  representatives,  and  of  the  national  party 
organized  within  his  state  for  the  election  of  state  and  local  officials. 
The  national       Nominally  the  national  committee  is  chosen  by  the  convention. 
Actually  each  delegation,  state  or  territorial,  nominates  one  mem- 
ber, and  the  convention  ratifies  this  choice.   The  national  com- 
'     mittee  is  the  head  of  all  party  organizations.    Its  activities  begin 
with  the  close  of  the  national  convention  and  continue  until  the 
adjournment  of  the  succeeding  convention.    The  cycle  of  these 
choice  activities  may  be  said  to  begin  with  the  choice  of  the  place  to 

hold  the  coming  convention.  Next,  a  call  for  the  convention  is 
issued  by  the  committee.  This  is  of  great  importance,  as  it 
determines  the  number  of  delegates  allotted  to  each  state  and 
prescribes  the  method  by  which  they  shall  be  chosen.  Perhaps 
Duties  the  most  important  of  all  the  committee's  duties  is  the  making 

of  the  temporary  roll  of  delegates  entitled  to  seats  in  the  con- 
vention, thereby,  as  the  experience  of  the  Republican  conven- 
tion of  1912  showed,  determining  the  choice  of  the  candidate. 
At  the  close  of  the  convention  the  committee  assumes  the 
conduct  of  the  campa^n  with  all  its  perplexing  details. 
Duties  of  At  the  close  of  the  campaign  the  national  committee  appar- 

nStteemenm"  entty  disappears  from  public  attention,  but  its  activities  by  no 
between         means  cease.    Each   member  of  the  committee  is  supposed  to 

campaigns  t 

keep  himself  ready  to  respond  to  calls  for  activity.    He  acts  as 


r-a  peacemaker  in  cases  of  dispute  and     issension ;  he  constantly 
•^  tests  ihe  fWTTV  loyalty  and  enthusiasm  in  his  state.     In  cases 

^^         «•*•*•••       ^^^^'^^^•••••^^ 

where  two  factions  have  developed,  his  influence  is  sometimes 
^decisive  in  rlpterminingL  tk*>  ™^f0qous  side.  He  serves  as  the 
medium  by  which  the  president  and  Congress  are  kept  informed 
of  the  opinion  of  the  rank  and  file  of  the  party.  If  his  party 
has  no  representatives  in  Congress  he  is  the  channel  through 
which  the  patronage  is  distributed ;  and  not  infrequently  his  in- 
fluence is  more  potent  and  he  is  more  often  consulted  than  the 
senators  and  congressmen  of  his  party.  In  highly  organized 
states,  where  the  organization  may  be  called  the  machine,  he  is 
often  the  leader  or  boss.  In  some  instances  a  national  com- 
mitteeman  has  been  known  to  combine  several  positions  and 


PARTY  ORGANIZATIONS  113 

functions ;  he  is  a  member  of  the  national  committee,  the  con- 
trolling influence  in  the  organization  of  the  national  party  for  — -* 
state  politics,  and  he  may  also  have  himself  elected  to  some  federal  * 
office.    Such  combinations  were  made,  for  example,  in  New  York 
in  the  case  of  Senator  Platt,  and  in  Ohio  in  the  case  of  Senator 
Hanna. 

Since  the  national  committee  holds  over  from  one  convention  Power  and 
to  the  end  of  the  next  succeeding,  the  committeemen  are  some-  iatSma?  ° 
times  able  to  perpetuate  their  own  existence.    Their  names  are  committee 
generally  found  among  the  delegates  chosen  for  the  next  con- 
vention and  usually  among  those  of  the  delegates  at  ,large.    They 
are  influential  in  the  state  conventions  which  are  called  to  nomi- 
nate the  delegates  at  large,  and  they  have  been  known  to  use 
their  influence  to  secure  the  election  of  the  proper  district  dele- 
gates.    If  the  committee  has  been  victorious  in  the  campaign, 
they  are  in  close  touch  with  the  administration,  and  with  the 
help  of  the  president  they  can  frequently  determine  the   next 
nominee.     In  this  they  are  helped  by  their  power  to  make  the 
temporary  organization  of  the  convention,  for  this  organization 
usually  votes  itself  the  permanent  organization  and  so  perpetuates 
the  influence  of  the  committee  which  summoned  it  into  .being. 

The  only  other  organizations  of  the  parties  are  the  cpngres-  congressional 
sional  committees.  These  date  in  the  Republican  party  'from  ° 
the  struggle  between  Johnson  and  Congress.  The  national  com- 
mittee was  naturally  in  close  touch  with  the  administration 
which  Congress  was  denouncing.  In  order  to  free  itself  from 
this  control  and  to  further  the  election  of  congressmen  hostile 
to  the  administration,  the  Republicans  of  both  Houses  met  in 
caucus,  and  the  party  representatives  from  each  state  and  terri- 
tory named  one  member..  Where  the  state  was  not  represented  composition 
in  Congress  it  had  no  member,  and  where  a  state  had  only  one 
representative  he  became  the  member  of  the  committee.  In 
the  Democratic  party  a  slightly  different  method  is  followed. 
The  Democratic  members  of  the  Senate  choose  nine  members 
of  the  committee,  and  members  of  the  House  choose  one  for 
each  state  represented.  In  case  there  is  no  representative  in 
either  body,  some  preeminent  party  man  from  the  unrepresented 
state  is  chosen. 


114    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Operation  of 

congressional 

committees 


Work  of  con- 
gressional 
committees 


Party 
machinery 
may  be  ser- 
vant or  mas- 
ter of  voters 


The  organi- 
zation or  the 
machine. 
The  boss 


State  party 
organization 
varies  as  the 
state  is  safe 
or  doubtful 


There  is  also  a  difference  in  the  method  of  operation  between 
the  committees  of  the  two  parties.  The  Republican  committee 
concentrates  its  attention  upon  the  doubtful  states  and  attempts  to 
increase  the  party  representation  in  Congress.  The  Democratic 
committee,  on  the  other  hand,  keeps  in  close  touch  with  the  na- 
tional committee  and  attempts  to  assist  in  the  popularization  and 
propagation  of  the  doctrines  of  the  party  in  all  parts  of  the  country. 

In  presidential  years  the  congressional  committees  seem  of 
little  importance.  They  subordinate  themselves  to  the  national 
committees  on  the  one  side  and  to  the  state  committees  on  the 
other.  In  the  elections  in  the  middle  of  the  term  of  the  presi- 
dent the  committee  is  somewhat  more  active.  Through  publica- 
tion it  attempts  to  precipitate  public  opinion  and  to  meet  new 
issues  unconsidered  in  the  national  platforms.  Through  speakers 
and  contributions  it  aids  in  the  campaigns  in  the  doubtful  states. 

The  organization  of  a  party  consists  of  the  institutions  —  con- 
ventions, committees,  caucuses,  primaries,  and  party  officials  — 
through  which  it  is  attempted  to  carry  out  the  will  of  the  mem- 
bers of  the  party  and  to  obtain  possession  of  the  government 
to  put  into  effect  the  principles  or  policies  of  the  party.  Such 
organizations  may  be  loose  or  close,  strict  or  weak.  They  may 
seldom  suffer  change  in  personnel  or  they  may  be  frequently 
changed,  but  as  long  as  they  are  responsive  to  the  wishes  of 
the  majority  of  the  party  and  attempt  to  get  control  of  the 
government  in  the  interests  of  the  party,  they  are  legitimate 
party  organizations.  When,  however,  the  party  officials,  leaders, 
or  officeholders  utilize  their  position  to  control  the  party  (and 
through  it,  the  government)  for  private  ends,  whether  their  own 
or  those  of  some  interest,  the  organization  becomes  the  machine 
and  the  leader  the  boss.  Machines  are  always  apparently  in- 
tensely partisan  and  constantly  appeal  to  party  loyalty,  while  in 
reality  they  may  be  bipartisan  in  essence  and  ready  to  trade 
votes  to  gain  their  private  ends. 

Roughly^  the  organization  of  the  parties  within  the  states 
varies  in  proportion  as  the  state  is  safe,  —  that  is,  where  one 
party  generally  gains  the  advantage ;  or  doubtful,  where  the 
parties  are  about  evenly  balanced.  In  safe  states,  however,  there 
are  several  varieties  of  party  organization.  In  some  sure  states, 


PARTY  ORGANIZATIONS  115 

like  Pennsylvania,  the  continued  dominance  of  one  party  has 
produced  a  machine,  with  its  boss,  which  controls  alike  the  party 
organization  and  the  government  and  crushes  all  opposition. 
At  the  other  extreme,  in  states  like  Vermont  and  Iowa,  although 
the  machine  is  not  unknown,  the  party  majority  is  generally  com- 
posed of  faithful  voters  who  support  the  party  conscientiously. 
Party  attachment  and  superior  numbers,  rather  than  party  or- 
ganization, secure  the  party  control.  In  this  category  might  be 
placed  the  Southern  states  where,  however,  the  race  question, 
rather  than  purely  political  issues,  gives  the  Democratic  party  its 
control.  An  apparent  exception  to  both  types  is  Massachusetts,  Exception 
which  is  regarded  usually  as  a  fairly  safe  Republican  state.  In 
this  state,  however,  individual  leadership  and  independence  in 
voting  have  made  it  impossible  for  either  party  organization  to 
develop  a  machine  and  have  forced  both  parties  to  keep  up 
effective  organizations. 

In  doubtful  states  the  organizations  of  both  parties  are  alert  orgamza- 
and  active  and  perform  the  normal' and  proper  functions  of  party 
organizations.    Machines  and  bosses  are  seldom  possible,  as  too 
much  interest  is  taken  by  the  "voters,  and  the  organization  of 
either  party  is  ready  to  expose  the  sins  of  the  other  and  to  take 
advantage  of  errors.    An  apparent  exception  is  found  in  New  Exception, 
York.    There  are  found,  first,  a  large  Democratic  city  with  a  NewYork 
class  of  voters  most  susceptible  to  machine  leadership  and  con- 
trol and,  second,  a  large  Republican  majority  outside  the  city.   In 
both  city  and  state  politics  the  possibje  rewards  for  corrupt  party 
action  are  greater  than  in  any  other  state ;  hence  the  possibility 
of  machine  organization  and  boss  rule  is  greater  than  elsewhere. 

In  all  states  the  actual  organs  of  the  party  organization  are  organs  of 
the  same  and  are  modeled  upon  the  national  organs.    There  are  organizations 
state  conventions  at  which  the  state  officers  are  nominated  and 
the  party  officials  chosen.    Outside  of  New  England  the  county 
is  the  next  unit,  with  its  convention  and  its  party  committee. 
In  New  England  the  county  conventions  are  more  or  less  per- 
functory affairs,  and  the  active  unit  below  the  state  is  the  city  or 
town.    For  each  of  these  there  are  party  organizations  and  com- 
mittees.   Besides  these  there  may  be  conventions  for  the  nomi- 
nation of  congressmen,  state  representatives,  and  state  senators, 


Il6    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Republican 
organization 
in  Pennsyl- 
vania, a 
safe  state 


each  choosing  its  own  committee  to  conduct  the  campaign.  But 
the  most  important  organizations  of  the  hierarchy  are  the  state 
and  the  local  organizations,  whether  county  or  city. 

Pennsylvania  may  be  taken  as  an  example  of  a  state  organi- 
zation carried  to  the  extreme  and  controlled  by  a  machine 
which  is  directed  by  a  boss.  The  Republican  state  convention 
is  composed  of  delegates  from  the  state  legislative  districts,  one 
delegate  being  allowed  for  each  two  thousand  votes  cast  for  the 
Republican  candidates  at  the  last  presidential  election.  Thus 
the  political  leaders  of  the  cities  which  cast  the  largest  vote 
acquire  great  influence.  The  state  committee  is  chosen  from 
the  state  senatorial  districts  and  consists  of  over  one  hundred 
members.  The  chairman,  who  is  chosen  not  by  the  convention 
nor  by  the  committee  itself,  but  by  the  chairman  of  the  conven- 
tion and  the  candidates  nominated  at  the  convention,  is  empowered 
to  name  twelve  members  at  large.  This  committee  is  thus  so 
large  that  it  cannot  act  as  a  body,  and  its  functions  are  generally 
performed  by  the  chairman  and  a  small  group  of  his  trusted 
lieutenants.  These  functions  consist  primarily  in  the  election 
of  the  candidates  nominated  at  the  convention.  Quite  as  im- 
portant from  the  point  of  view  of  the  chairman  is  the  need  of 
keeping  the  organization  under  'his  control  and  of  dominating 
the  various  county  conventions.  These  county  conventions  are 
apparently  independent  of  the  state  committee  and  present 
varieties  of  form  and  procedure.  They  have,  however,  one 
characteristic  in  common.  The  committees  are  all  so  large, 
some  being  as  large  as  the  state  committee,  that  corporate 
action  is  impossible,  and  the  power  is  exercised  by  the  chair- 
men. These  chairmen  are  controlled  by  the  chairman  of  the 
state  committee,  and  both  county  and  state  organizations  respond 
to  his  direction.  Pennsylvania  is  unique  in  that,  since  the 
foundation  of  the  Republican  party,  the  state  organization  has 
been  dominated  by  United  States  senators.  Practically  all  the 
federal  patronage  is  distributed  through  the  senatorial  leader, 
and  he  has  been  able  to  convert  what  on  the  face  seems  a  most 
efficient  organization  into  what  is  regarded  by  many  as  a  perfect 
machine.  With  the  exception  of  1912  it  has  never  failed  to  de- 
liver a  large  Republican  majority  and  the  electoral  vote  of  the  state. 


PARTY  ORGANIZATIONS  li; 

The  most  famous  local  party  organization  is  the  Democratic  Democratic 
organization  of  New  York  County  known  as  Tammany  Hall.  ingado?bt- 
The  central  power  of  the  organization  is  the  county  committee  ful  state 
composed  of  one  member  to  every  twenty-five  Democratic  Tammany 
voters.  This  apportionment,  which  gives  a  huge  committee  of  l 
over  eight  thousand,  is  defended  on  various  grounds.  Theoreti- 
cally it  is  the  most  perfectly  democratic  organization  in  the 
world,  as  it  gives  representation  to  every  little  group  of  Demo- 
cratic voters.  From  the  point  of  view  of  the  party,  it  insures 
the  activity  of  a  large  number  of  party  workers.  Financially  it 
gives  the  party  a  comfortable  revenue  of  $80,000,  as  each 
member  pays  an  annual  assessment  of  ten  dollars.  From  the 
point  of  view  of  the  machine,  the  size  of  the  committee  pre- 
cludes any  general  action  and  makes  certain  the  control  of  a 
small  group  of  leaders.  This  group  is  the  executive  committee, 
which  is  composed  of  the  leaders  of  the  thirty-five  assembly 
districts  in  New  York  County.  Theoretically  the  leader  is  chosen 
by  the  voters  of  his  district ;  actually  this  is  not  so.  The 
would-be  leader  makes  up  his  slate,  that  is,  a  ticket  headed  by 
his  own  name  and  containing  the  names  of  as  many  of  his 
supporters  as  his  district  is  entitled  to,  according  to  the  ratio  of 
one  to  every  twenty-five  votes.  Should  this  ticket  be  elected, 
he  is  known  as  the  executive  member  and  is  generally  elected 
by  the  convention  a  member  of  the  executive  committee.  A 
rule,  however,  requires  that  a  new  member  can  be  elected  to 
the  executive  committee  only  with  the  approval  of  the  retiring 
committee.  If  this  approval  is  not  given,  the  committee  may 
elect  someone  else,  thus  giving  the  committee  the  power  to 
perpetuate  itself.  For  the  purpose  of  making  county  nomina- 
tions, conventions  are  held  composed  of  delegates  chosen  from 
each  district,  but  these  conventions  do  little  more  than  ratify 
the  decisions  of  the  executive  committee.  In  fact,  the  executive 
committee  controls  the  party  in  the  city  and,  when  that  party  is 
in  power,  the  government  of  the  city  and  county.  Owing  to 
the  influence  of  the  social  organization  known  as  Tammany 
Hall,  its  officials  and  leaders  dominate  the  executive  committee 
and,  when  the  party  is  successful  in  elections,  have  been  , 

known  to  control  the  appointment  of  the  city  officials,  the  action 


118    THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  work 
°ation°r8 


selection  of 


Distinction 

between  the 

work  of  the 


machine 


of  the  mayor  and  of  the  city  government,  and  thus  have  gained  for 
themselves  and  their  supporters  not  merely  the  legitimate  rewards 
of  place  but  the  illegitimate  perquisites  known  as  graft.  The 
operations  between  1863  and  1871,  when  both  Tammany  Hall 
and  the  party  organization  were  dominated  by  the  Tweed  Ring, 
are  notorious.  This  concentration  of  power  and  misuse  of  the 
party  organization  for  private  ends  has  at  times  made  Tammany 
Hall  one  of  the  best  examples  of  a  machine  organization.1 

It  has  been  said  that  the  purpose  of  a  political  party  is  to 
secure  possession  of  the  government  by  the  election  of  its  can- 
didates.  Theoretically,  therefore,  the  purpose  of  the  organization 
of  a  party  should  be  to  carry  the  election  for  the  party.  The 
problem  is  not  so  simple  nor  are  the  functions  of  the  organiza- 
tion confined  to  that  single  object.  As  has  been  pointed  out, 
the  first  step  in  the  campaign  is  the  selection  of  the  candidates 
of  the  party.  It  is  here  that  the  organization  begins  its  work, 
and  it  is  here  that  the  work  of  the  organization  is  most  effectively 
done.  It  is  here,  moreover,  that  the  operations  of  the  organiza- 
tion are  most  sharply  distinguished  from  those  of  the  machine. 
Every  machine,  and  to  a  less  extent  some  organizations,  seeks 

,     .  .  ,     .  .  .     . 

to  control  the  action  of  the  members  of  the  party.  In  the  case 
°f  a  machine  this  control  is  sought  so  that  the  strength  of  the 
party  may  be  utilized  for  private  ends.  The  true  boss  must  be 
able  "  to  deliver  the  goods  "  ;  that  is,  to  control  the  action  of  the 
representatives  and  executive  officers.  Generally  this  is  accom- 
plished by  the  nomination  of  "  safe  "  candidates  ;  that  is,  strong 
partisans  of  the  organization  or  machine.  Thus  it  sometimes 
happens  that  a  boss  and  the  machine  are  willinff^p  forego  com- 
plete victory  in  order  to  retain  the  control  of  the  machinery  of 
the  party.  The  reasons  for  this  self-denial  are  twofold.  Elections 
come  frequently,  and  the  defeat  of  one  year  may  be  compensated 
by  the  success  of  the  next.  Appeals  to  party  loyalty  can  be 
effectively  used  where  the  action  of  the  opponents  can  be  freely 
criticized.  Often  the  change  of  comparatively  few  votes  will  be 
sufficient  to  swing  the  balance.  But  the  control  of  a  party 
organization  is  often  the  result  of  years  of  secret  work  and, 

1  See  D.  B.  Eaton,  Government  of  Municipalities,  chaps,  iv-vi  ;  James  Bryce, 
The  American  Commonwealth  (rev.  ed.,  1914),  p.  Ixxxviii. 


PARTY  ORGANIZATIONS  119 

once  lost,  is  more  difficult  to  regain.    Moreover,  since  the  boss 
utilizes  the  party  for  private  ends,  it  may  be  possible  to  obtain 
partial  satisfaction  of  some  of  these  by  sacrificing  victory  at  the 
election  in  return  for  favors  from  the  majority  and  for  continued 
control  of  the  organization.    Thus,  it  is  sometimes  asserted  that 
in  doubtful  states  the  machine  is  really  bipartisan,  using  the  Machines 
name  of  the  majority  party  but  operating  through  groups  in  ^partisan 
both    parties.     Particularly    is    this    characteristic    of    machine 
methods   in  state  legislatures  and  municipalities.1   . 

To  insure  that  only  those  are  allowed  to  vote  who  have  the  Registration 
right,  most  states  require  some  system  of  registration  of  voters. 
It  is  at  this  point  that  the  work  of  the  organization  of  the  party 
as  distinguished  from  the  party  itself  begins.    The  organization, 
by  means  of  committees  in  every  district  or  ward,  attempts  to  see 
that  every  voter  likely  to  support  the  party  is  properly  enrolled 
on  the  official  registration  lists.  This  duty  frequently  involves  the 
use  of  party  workers,  either  voluntary  or  .paid.    At  this  point,  where  the 
formerly,  some  of  the  most  effective  work  of  the  machine  began.  orgmacwne°n 
Voters  were  "colonized"  in  crowded  districts;  that  is,  registered  JJJste^. 
under  false  addresses.    Sometimes  they  were  bodily  transferred  tive  work 
from  a  safe  to  a  doubtful  district  with  only  a  few  days'  resi- 
dence, and  sometimes  they  were  registered  and  voted  in  doubt- 
ful districts  without  even  this  quasi-compliance  with  the  law. 
The  advantage  to  the  machine  was  obvious.    It  gave  the  machine 
a  group  of  voters,  more  or  less  dependable,  on  which  it  could 
count  at  the  primaries  for  its  own  perpetuation  and  the  nomina- 
tion of  its  candidates,  as  well  as  a  body  of  voters  pledged  or 
hired  to   support  the   nominations   at   the   election.    In   those 
states  which  require  annual  registration  or  registration  before 
each   election   the   organization   is   compelled  to   make   urgent 
appeals  to  the  party  members  not  to  neglect  to  register,  while 
the  machine  uses  the  appeal  to  the  self-interest  and  the  self- 
preservation  of  its  workers  and  sees  to  it  that  its  supporters  are 
properly  registered. 

Primaries,  or  caucuses,  are  meetings  of  the  party  members  to 
determine  the  candidates  of  the  party,  the  delegates  to  the  next 
higher  party  convention,  and  the  party  officials.  Originally  they 

1  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods,  pp.  241  et  seq. 


120    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Corrupt 
operation 
by  powerful 
machine 


Members  of 
the  organiza- 
tion most 
active  in 
parties 


State  laws 
controlling 
parties 


Definition  of 
a  party 


were  extra-legal  meetings,  unregulated  by  statute,  and  laws  unto 
themselves.  As  such  they  furnished  fertile  soil  for  the  growth 
and  operation  of  the  machine,  and  even  party  organizations  did 
not  hesitate  to  use  them  in  a  manner  hardly  compatible  with 
the  ideal  purposes  of  party  instruments.  In  localities  where 
the  machine  was  highly  organized,  it  controlled  absolutely  the 
primary.  Only  those  were  allowed  to  vote  who  had  been  for- 
mally admitted.  "  Snap  "  primaries,  or  meetings  called  on  short 
notice,  were  held ;  or  the  work  of  the  primary  was  hurried 
through  in  the  presence  of  but  a  fraction  of  the  party  members. 
Sometimes,  although  the  notice  of  the  primary  might  be  given, 
the  proceedings  were  dispensed  with  and  the  local  leader  made 
returns  satisfactory  to  himself.  When  these  means  failed 
"•  strong-arm  methods"  were  employed.  Nonmachine  members 
were  driven  away  by  force,  small-sized  riots  were  started,  and 
the  ballot  box  was  filled  with  paper  votes,  or  the  official  returns 
were  "  satisfactorily  "  altered.  In  any  instance  the  will  of  the 
machine  was  registered  whether  it  was  the  desire  of  the  party 
or  not.1 

Where  the  machine  was  less  powerful  the  organization  could 
usually  count  upon  the  apathy  of  most  of  the  members  of  the 
party  and  on  the  activity  of  its  stanch  supporters.  Those  favor- 
able to  the  organization  would  come  to  the  primaries ;  those  in- 
different wou]d  not.  In  the  case  of  a  struggle  within,  the  party, 
nonparty  members  might  be  induced  to  vote  for  the  ticket  of 
the  organization  to  the  discomfiture  of  the  more  independent 
members  of  the  party. 

To  remedy  these  evils  and  if.  possible  to  restore  the  control 
of  the  party  to  its  members  most  of  the  states  have  adopted 
statutes  subjecting  the  primaries  to  the  operation  of  law.  The 
first  step  is  to  define  what  political  associations  are  subject  to 
state  regulation.  One  of  two  definitions  is  generally  followed : 
A  party  is  a  political  organization  whose  candidates  polled  a  fixed 
number  of  votes  at  the  preceding  election ; 2  or,  and  more  fre- 
quently, a  party  is  an  organization  whose  candidates  obtained  a 

1  M.  Ostrogorski,   Democracy  and   the   Organization   of   Political   Parties, 
Vol.  II,  pp.  207-213. 

2  In  New  York  this  number  is  ten  thousand. 


PARTY  ORGANIZATIONS  121 

fixed  percentage  of  the  total  vote  cast  at  the  preceding  election.1 
Organizations  falling  within  these  definitions  are  subject  to  laws 
concerning  primary  elections,  and,  on  the  other  hand,  such  associa- 
tions have  the  privilege  of  placing  their  candidates  on  the  ticket 
under  the  party  designation.  Thus  the  choice  at  the  primaries 
gives  the  right  to  the  use  of  the  party  emblem  and  the  party 
name,  while  the  dissatisfied  elements  within  a  party  must  seek 
other  means  for*  nominating  their  candidates,  and  names  and 
designations  other  than  those  of  the  regular  party. 

After  having  defined  a  party,  the  next  problem  is  to  provide 
a  test  by  which  party  membership  may  be  determined.  This  is  of 
great  importance,  for  as  the  preamble  to  the  Oregon  law  asserts : 

It  is  as  great  a  wrong  to  the  people  as  well  as  to  the  members  of  a  Necessity  of 
political  party,  for  anyone  who  is  not  known  to  be  one  of  its  members  ^"mem- 
to  vote  or  take  part  in  any  election  or  the  proceedings  of  such  a  bership 
political  party,  as  for  one  who  is  not  a  qualified  and  registered  elector 
to  vote  at  any  state  election  or  to  take  part  in  the  business  of  the  state. 

The  difficulty  is  to  find  some  test  which  at  once  preserves  the 
independence  of  the  voter  and  safeguards  the  party  from  the 
assault  of  nonmembers.  States  vary  at  different  times  in  their 
desire  to  accomplish  first  one  and  then  the  other  of  these  objects. 
For  example,  the  method  followed  by  Wisconsin  since  1903 
established  what  is  known  as  the  open  primary,  as  distinct  from  The  open 
the  closed  primary,  at  which  some  test  or  preliminary  registration  pm 
is  required.  From  1916  to  1917  Massachusetts  adopted  the 
open  primary,  at  which  nominees  of  all  parties  were  arranged 
in  party  columns  and  the  voters  of  all  parties  received  the  same 
ballot  and  voted  for  whom  they  pleased,  provided  that  their 
votes  were  all  cast  for  candidates  in  a  single  party-column.  It 
must  be  noticed,  however,  that  it  is  scarcely  a  primary  at  all, 
if  a  primary  be  defined  as  the  action  of  the  members  of  a 
party.  It  is  rather  a  preliminary  election  at  which  the  members 
of  all  parties  participate. 

The  closed  primary  is  the  one  most  widely  used.    Here  the  The  dosed 
test  of  party  affiliation  is  determined  in  various  ways.     In  the  p 

1  In  Iowa  2  per  cent  of  the  vote  cast  for  governor;  in  Oregon  25  per  cent 
of  the  vote  cast  for  the  candidate  for  Congress. 


122    THE  GOVERNMENT  OF  THE  UNITED  STATES 

South  it  is  generally  left  to  the  discretion  of  party  officials.    In 
New  York  declarations  of  party  affiliation  are  made  at  the  time 
of  registration,  from  which,  after  the  election,  the  party  lists  are 
made  up.     Other  states  require  a  personal  declaration  from  the 
voter  at  the  time  of  the  primary,  which  if  challenged  must  be 
supported  by  an  oath  that  he  has  not  taken  part  in  the  primaries 
of  other  parties  within  a  certain  time  and  that  he  intends  to  sup- 
port, at  the  coming  election,  the  candidates  chosen  at  the  pri- 
Testsof          mary.     Still  another  variation  requires  the  voter  to  register  his 
bershi™eE       preference  by  asking  for  the  ballot  of  a  particular  party.    His  re- 
quest automatically  registers  him  as  a  member  of  that  party  and 
debars  him  from  taking  part  in  the  primary  of  another  party  unless 
he,  a  certain  time  before  the  primaries,  registers  his  change  of 
party  affiliation.     In  varying  degrees  these  regulations   guard 
the  integrity  of  the  party  but  discourage  independent  voting  and, 
from  the  fact  that  the  party  affiliations  of  the  voters  are  matters 
of  public  record,  make  the  work  of  the  organization  easier, 
state  control       State  law  has  furthermore  regulated  the  conduct  of  the  pri- 
priSarief0     maries.     It  has  determined,  within  certain  limits,  the  hours  at 
which  the  primaries  must  be  open  ;   it  has  regulated  the  form  of 
the  ballots,  which  in  some  states  are  printed  at  public  expense; 
it  has  provided  that  the  names  of  the  nominees  shall  be  placed 
on  the  ballots  as  the  result  of  petitions  signed  by  a  varying  num- 
ber of  voters ;  it  has  also  required  that  the  results  of  the  primary 
shall  be  entered  upon  official  blanks  and  that  the  ballots  shall  be 
kept  in  sealed  boxes  for  a  certain  time,  pending  the  demand  for  a 
recount.    Finally,  it  has  provided  that  all  expense  shall  be  borne 
by  the  community  which  bears  the  expense  .of  the  election. 
Functions  of        Primaries,  however,  are  more  than  party  meetings  to  nominate 
candidates  for  office.    They  are  meetings  for  the  selection  of  the 

(1)  select       officials  of  the  party  organizations.     In  precincts  and  wards  and 

candidates  „      .         .  .         ,  .  .  ,  ,  ,   r         , 

for  office         generally  in  cities  the  primaries  have  long  been  used  for  the  pur- 

(2)  select        pose  of  choosing  the  members  of  the  party  committees.   In  larger 
party1  organi-  political  divisions  the  convention  has  generally  been  the  place  of 

choice.  But  as  has  been  seen  the  convention  was  believed  to  be 
the  field  which  the  boss  most  firmly  controlled.  In  the  attempt 
to  weaken  this  control  and  to  democratize  the  party  organization, 
the  selection  of  the  county  and  state  committees  in  many  states 


PARTY  ORGANIZATIONS  123 

has  been  taken  from  the  convention  and  given  to  the  primaries. 
Theoretically,  this  should  give  the  voters  actual  and  complete 
control  and  make  the  machine  impossible.  Actually,  because 
of  the  apathy  of  the  voters  and  the  activity  of  the  workers  of 
the  organization,  the  change  has  not  accomplished  all  that  was 
hoped  for.  The  third  duty  of  the  primaries  is  to  choose  dele-  (3)  Select 
gates  to  some  higher  party  organization  which  is  intrusted  with 
the  nomination  of  the  party  candidates-,  or,  in  the  case  of  the 
nomination  of  the  president,  with  the  selection  of  delegates  to 
the  national  nominating  convention.  The  names  of  these  dele- 
gates, in  the  old  days  when  the  primary  was  unregulated  by  law, 
were  put  upon  the  primary  ballot  by  the  party  committee  or  the 
boss  of  the  district.  Now  they  find  their  place  there  generally  as 
the  result  of  petition.  In  either  case  through  the  carelessness  of 
the  voters  and  the  lack  of  independence  of  the  delegates,  the 
organization  usually  controls  the  convention. 

As  has  been  pointed  out,  the  use  of  state  and  county  conven-  state  and 
tions  for  the  purpose  of  making  nominations  antedated  the  use 
of  national  conventions.  However,  the  development  of  this 
instrument  and  its  subjection  to  the  control  of  the  machine  did 
not  take  place  until  the  last  quarter  of  the  nineteenth  century. 
In  those  years  the  convention  showed  alike  all  the  excellences 
and  evils  such  a  system  was  capable  of. 

A  party  convention  is  composed  of  delegates  chosen  by  some 
lower  and  smaller  party  assembly.  The  choice  of  delegates  was 
formerly  often  made  at  the  primary,  which  the  boss  or  the 
organization  usually  managed  to  control.  This  control  was  made  (i)  controlled 
easier  by  the  very  number  of  delegates  which  the  voters  were 
asked  to  choose.  Delegates  for  city  conventions  were  rarely 
chosen  ;  delegates  for  county  conventions  were  always  chosen 
outside  of  New  England ;  delegates  for  state  conventions,  for 
state  senatorial  conventions,  for  state  legislative  district  conven- 
tions, for  congressional  conventions,  and  sometimes  for  con- 
ventions to  fill  even  more  minor  offices  were  often  chosen. 
Unless  some  crisis  was  impending  the  party  committee  for  the 
district  in  which  the  primary  was  held  was  almost  unhampered 
in  the  choice  of  names  put  upon  the  ballot.  Once  upon  the 
ballot  there  was  rarely  any  contest,  and  the  "  slate,"  as  the  choice 


124    THE  GOVERNMENT  OF  THE  UNITED  STATES 


(2)  Controlled 
through 
naming  the 
"slate,"  or 
list  of  dele- 
gates 


(3)  Controlled 
through 
referring  con- 
tests to  com- 
mittee of 
organization, 
then  to  com- 
mittee on 
credentials, 
then  to  con- 
vention 


Opportunity 
for  corrupt 
manipula- 
tion in  state 
and  county 
conventions 


of  the  organization  was  called,  was  ratified.  Roughly,  three 
classes  of  delegates  were  favored  by  the  organization  :  compliant 
party  members  who  would  support  the  organization  and  follow 
the  advice  of  the  party  leaders  would  make  up  the  majority. 
Men  of  more  independence  and  weight  were  chosen  but  their 
influence  was  neutralized  by  the  character  of  the  rest  of  the 
delegation.  Sometimes  excellent  delegates  were  solemnly  elected 
who  by  no  possibility  could  attend  the  convention,  and  their  cre- 
dentials were  given  to  compliant  party  workers.  Not  infrequently 
when  the  machine  failed  to  obtain  from  the  primary  the  dele- 
gates desired,  another  set  was  chosen  and  furnished  with 
credentials,  and  both  delegations  appeared  before  the  convention, 
each  claiming  to  be  legally  chosen  from  the  district.  Such 
contests  were  referred  to  the  state  or  countyN  committee,  which 
made  up  the  temporary  roll,  then  to  the  committee  on  creden- 
tials, which  reflected  the  will  of  the  majority  upon  the  temporary 
roll,  and  finally  to  the  convention  itself.  In  each  of  these  steps 
the  influence  of  the  party  committee  which  summoned  the 
convention  and  made  up  the  temporary  roll  was  all-powerful. 
Once  the  convention  was  organized  to  satisfy  the  organization, 
there  was  little  likelihood  of  effective  opposition.  Still  less  was 
there  much  possibility  of  the  convention  thwarting  the  will  of 
the  boss,  when  a  machine  controlled  the  party  committee  and 
boldly  unseated  the  opposing  delegates  and  seated  its  own 
adherents. 

The  operations  and  procedure  of  state  and  county  conventions 
are  quite  analogous  to  those  of  the  national  conventions  to  be 
described.  One  exception  must  be  noted.  State  conventions 
attract  less  public  attention  than  the  national  conventions,  and 
minor  local  conventions  still  less.  Hence,  in  the  absence  of 
public  scrutiny  the  delegates  may  be  "  manipulated  "  and  sub- 
jected to  improper  influences.  The  credentials  of  members 
unable  to  attend  may  be  acquired,  and  instances  are  known 
where  they  were  offered  for  sale  to  prospective  candidates. 
Promises  of  office  where  offices  are  so  numerous  and  so 
relatively  unimportant  may  be  made  with  less  danger  and  more 
likelihood  of  fulfillment.  Private  interests  operate  more  freely 
and  openly  than  at  national  conventions. 


PARTY  ORGANIZATIONS  125 

Aside  from  the  choice  of  candidates  and  the  framing  of  the  commit- 
platform  the  conventions  formerly  chose  the  members  of  the  pe^uating 
state  and  county  committees.    If  the  convention  is  organized 
by  the  committee  and  responsive  to  its  wishes  the  choice  of  the 
committee  for  the  next  campaign  is  generally  but  a  perpetua- 
tion  of   the   term   of   the  old   committee.    The  circle   is   thus 
completed.    The    committee   creates    the   convention    and    the 
convention   re-creates   the  committee. 

In   order   to   remedy  the   abuses   shown   in   the  convention  The  direct 
system,  and  to  weaken  the  influence  of  the  organization  and  to  p 
break   the   power   of   the   machine,   the   device   of    the   direct 
primary   was   introduced   in  the   early   years   of   the  twentieth 
century.    It  spread  rapidly  and  was  utilized  in  some  one  of  its 
various  forms  in  almost  every  state  in  the  Union.1 

Briefly,  the  direct  primary  consists  of  the  nomination  of  Definition 
candidates  directly  by  the  party  members  without  the  interven-  tSnsfUn 
tion  of  a  delegate  convention.  Applied  to  the  nomination  of 
the  president,  it  means  that  the  district  delegates  are  chosen 
in  primaries  held  in  the  districts,  while  the  delegates  at  large 
are  no  longer  chosen  by  the  state  conventions  but  by  the  voters 
at  the  same  primaries  which  choose  the  district  delegates.  Since 
for  presidential  nominations  the  would-be  delegates  frequently 
indicate  the  candidate  they  are  willing  to  support,  the  primaries 
become  a  test  of  the  popularity  of  the  presidential  aspirants 
and  tend  to  weaken  the  influence  and  importance  of  the  national 
conventions.  Moreover,  the  varying  laws  of  the  different  states 
come  into  conflict  with  the  rules  of  the  parties  for  the  choice 
of  delegates. 

Aside  from  the  claim  that  the  direct  primary  will  destroy  the  Advantages 
influence  of  the  machine  and  the  improper  influence  of  economic  tne  direct 
interests,  —  a  claim  by  no  means  always  to  be  substantiated  by  the  pnl 
facts,  —  the  supporters  of  the  institution  find  other  benefits.    It  (i)  Destruc- 
is  asserted  with  truth  that  the  primaries  held  for  the  direct  machine 
nomination  of  the  candidates  bring  out  a  larger  vote  than  those  (2)  Larger 
held  for  the  choice  of  delegates.    From  this  it  is  argued  that  ^  More  at_ 
the  voters  are  giving  greater  attention  to  the  choice  of  the  candi-  tention  to 

.        choice  of 

date   instead  of  reserving  their  attention   and   interest  to  the  candidate 

1  See  American  Year  Book  (1917),  p.  49. 


A  ' 


126    THE  GOVERNMENT  OF  THE  UNITED  STATES 


(4)  Popular 
control  of 
committees 


(5)  Nomina- 
tion of  better 
men  as  candi- 
dates 


Disadvan- 
tages : 


(i)  Lack  of 
discussion 


(2)  Chance 
for  dema- 
gogues 


(3)  Possi- 
bility of 
choice  by 
minority 


(4)  Expense 
to  candidates 


election  of  the  officer.  Since,  moreover,  in  many  states  the  mem- 
bers of  the  committees  are  chosen  directly,  it  gives  the  voters 
an  opportunity  to  express  their  preference  and  to  prevent  the 
organization  from  becoming  self-perpetuating.  Finally,  it  is  as- 
serted, although  the  assertion  is  difficult  to  substantiate,  that 
better  men  are  chosen  as  the  result  of  the  direct  participation 
of  the  intelligent  members  of  the  party.  If  the  members  of  the 
party  showed  active  and  intelligent  interest,  the  assertion  might 
be  more  capable  of  demonstration,  but  since,  save  in  crises, 
the  supporters  of  the  organization  form  the  majority  of  the 
voters  at  the  primary,  the  control  which  the  nonorganization 
members  exercise  is  potential  rather  than  actual. 

The  direct  primary  is  attended  with  certain  disadvantages 
which  even  the  supporters  of  the  system  recognize.  The  vote 
at  the  primary  is  decisive  and  allows  for  no  compromise.  In 
the  ideal  working  convention  the  supporters  of  the  different 
candidates  present  their  claims  and,  after  canvassing  the  sit- 
uation, the  convention,  guided  by  the  various  opinions  expressed 
either  publicly  or  privately  by  the  delegates,  selects  the  man 
best  fitted  to  be  the  candidate  of  the  party.  Argument  and 
persuasion  precede  conviction.  The  direct  primary  registers,  in 
theory,  the  decision  of  the  voter  as  influenced  by  the  arguments 
of  the  various  candidates ;  actually  it  is  more  often  the  result 
of  some  popular  or  demagogic  appeal.  The  choice  of  the  direct 
primary,  moreover,  may  result  in  the  nomination  of  a  candidate 
by  the  minority  of  the  party.  When  many  names  are  put  upon 
the  ballot,  each  drawing  numerous  supporters,  the  party  strength 
is  dissipated  and  the  candidate  receiving  the  largest  vote  may 
fall  far  short  of  obtaining  the  majority  of  the  votes  of  the  party 
and  even  may  fail  to  get  a  majority  of  the  votes  cast  at  the 
primary:  Various  devices  have  been  suggested  to  prevent  this, 
but  the  fact  remains  that  the  successful  candidate  of  a  multitude 
may  not  be  the  one  most  satisfactory  to  the  voter.  Finally,  the 
item  of  expense  deters  some  men  of  moderate  means,  since  to 
make  himself  known  to  the  voters  the  candidate  is  forced  to 
conduct  two  campaigns.  In  spite  of  these  serious  defects  no 
state  which  has  once  adopted  the  direct  primary  has  returned 
to  the  convention  method  of  nomination. 


PARTY  ORGANIZATIONS  127 

The  third  and  last  duty  of  the  organization  is  the  election  of  The  cam- 
its  candidates.  This  is  attempted  by  the  campaign.  A  cam-  paign 
paign  may  be  defined  as  an  organized  effort  to  influence  voters 
throughout  the  district  voting  upon  the  candidates.  Thus,  in 
the  last  analysis,  there  are  campaigns  for  cities,  counties,  con- 
gressional districts,  states,  and  the  nation.  But  since,  in  many 
instances,  the  campaigns  for  several  and  sometimes  for  all  of  the 
officers  come  at  the  same  time  and  the  names  of  all  the  candi- 
dates are  upon  the  same  ballot,  a  single  campaign  for  the  suc- 
cess of  the  whole  party  ticket  is  carried  on.  All  campaigns, 
whether  for  local,  state,  or  national  officers,  have  many  charac- 
teristics in  common,  although  they  differ  greatly  in  methods  and 
in  degree  of  activity. 

The  most  salient  and  striking  similarity  is  the  activity  of  the  The  work  of 
organized  committees.  In  the  presidential  campaign  the  national  committee*1 
committee  works  at  feverish  speed.  Headquarters  are  opened 
in  New  York,  and  usually  branch  headquarters  in  Chicago.  The 
chairman,  the  treasurer,  and  the  members  of  the  executive  com- 
mittee assume  the  direction  of  the  wide  general  features  of  the 
campaign  and  impress  their  ideas  upon  the  other  members  or 
other  organizations  by  frequent  and  almost  continuous  confer- 
ences. These  conferences  are  held  either  at  the  headquarters 
or  in  various  localities  where  the  presence  of  an  influential  ex- 
ecutive officer  is  required.  Thus  it  happens  that  the  chairman 
of  the  national  committee,  both  from  his  position  at  headquarters 
and  from  his  frequent  and  continuous  journey  ings  throughout 
the  country,  becomes  a  well-known  figure,  of  importance  not  only 
in  the  national  organization  but  in  the  state  organizations  as  well. 

When  the  state  elections  coincide  with  the  national  elections  work  of  the 

i  .  ,     .       ,  .  ,       ,  .         ,  national 

the  state  committees  work  in  harmony  with  the  national  com-  and  state 
mittee,  and  are  sometimes  practically  supplanted  by  it.  A  dif- 
ference,  however,  must  be  noted  between  the  activities  of  the 
national  committee  in  sure  and  in  doubtful  states.  Sure  states, 
where  the  result  of  the  contest  is  practically  certain,  receive  little 
attention  from  the  national  committee.  The  member  of  the  com- 
mittee from  the  state  may  report  upon  conditions  and  ask  for  a 
share  of  the  funds  or  speakers  or  campaign  literature,  but  the 
amount  he  receives  depends  upon  the  estimated  closeness  of 


128     THE  GOVERNMENT  OF  THE  UNITED  STATES 


Work  of  the 
national 
and  state 
committees 
in  doubtful 
states 


Relation  of 
national  and 
state  cam- 
paigns 


the  vote.  When  victory  or  defeat  is  certain  little  effort  is  spent 
in  attempting  to  obtain  an  overwhelming  majority  or  in  combat- 
ing hopeless  defeat.  In  these  states  the  state  committee  assumes 
active  control  and  direction,  raises  its  own  funds,  and  is  respon- 
sible for  the  result.  Where,  however,  the  issue  is  doubtful  a  very 
different  policy  is  pursued.  The  very  fact  that  headquarters  are 
located  in  New  York  shows  the  anxiety  with  which  that  state 
with  its  large  electoral  vote  is  regarded.  In  such  states  the  na- 
tional committee  may  practically  control  and  supersede  the  state 
committee.  The  national  committeeman  from  the  state  is  in  fre- 
quent and  almost  constant  touch  with  the  chairman  and  leaders 
of  the  committee.  His  judgment  is  received  with  great  respect 
and  generally  followed.  In  case,  however,  of  factional  dissension 
within  the  party  in  the  state  this  dependence  is  not  always  shown. 
The  committeeman  naturally  advances  the  interest  of  his  own 
faction  which  sometimes,  even  with  the  backing  of  the  national 
committee,  fails  to  control  the  majority  of  the  party.1  Although 
the  activities  of  the  national  committee  in  doubtful  states  over- 
shadow those  of  the  state  committee  both  in  intensity  and  in 
magnitude,  yet  the  state  committee  by  no  means  ceases  its  work. 
Some,  and  often  much,  of  the  money  spent  by  the  national  com- 
mittee is  distributed  through  the  medium  of  the  state  committee. 
Moreover,  the  state  committee  itself  raises  sometimes  large  sums 
for  the  purpose  of  insuring  its  control  over  the  state  officials.2 

But  whether  the  state  be  sure  or  doubtful,  whether  the  na- 
tional committee  be  active  or  inactive  within  it,  the  state  and 
national  campaigns  are  inseparable.  The  presidential  candidate 
who  carries  the  state  usually  sweeps  into  office  the  state  officials 
of  his  party.3  The  national  party  is  furthermore  deeply  inter- 
ested in  the  success  of  the  party  candidates  for  senators  and 
representatives.  To  carry  out  its  policies  effectively  the  success- 
ful party  must  control  not  merely  the  presidency  but  Congress 

1  An  excellent  example  of  this  was  seen  in  the  conditions  in  California  in 
1916  when  Hiram  Johnson  was  elected  United  States  senator  as  a  Republican, 
although  Wilson  as  the  Democratic  nominee  carried  the  state. 

2  Thus  Mr.  Roosevelt  persuaded  several  rich  men  in  New  York  to  underwrite 
the  campaign  in  that  state  in  1908.   He  asserted  with  truth  that  he  had  not  asked 
money  for  the  presidential  campaign  but  for  the  state  Republican  committee. 

8  Exceptions  are  numerous,  but,  taking  the  country  as  a  whole,  this  is  true. 


PARTY  ORGANIZATIONS  129 

as  well.  Hence  the  congressional  committees  of  both  parties 
devote  whatever  energy  and  resources  they  may  have  to  secur- 
ing the  election  of  their  candidates  to  Congress.  This  is  most 
noticeable  in  "off  years"  when  the  elections  for  senators  and 
representatives  are  the  only  ones  held.  In  presidential  years  the 
senatorial  campaign  is  directed  by  the  state  committee,  and  some 
assistance  may  be  given  to  the  campaigns  of  representatives. 
Nominally,  however,  the  state  committee  is  most  interested  in 
the  success  of  the  party  candidates  for  governor  and  the  control 
of  the  state  legislature,  and  to  this  end  it  devotes  its  energies, 
although  not  its  undivided  attention.  Since  the  national  com- 
mitteeman  is  influential  in  the  state  committee,  if  not  either 
officially  or  tacitly  its  leader,  and  since  in  the  final  resort  he 
has  the  control  of  the  greater  resources,  his  views  are  listened 
to  with  interest  and  his  suggestions  generally  obeyed.  So 
closely  interwoven  are  the  interests  of  both  the  national  and  state 
organizations  of  the  party  that  it  is  hard  to  determine  where 
one  begins  and  the  other  leaves  off.  Harmony,  cooperation,  and 
coordination  are  characteristic  of  their  relations. 

The  county  and  city  committees  also  cooperate  with  the  na-  cooperation 
tional  committees.  Primarily  their  interests  lie  in  the  election  committees 
of  the  local  officers  and  their  efforts  are  expended  in  that  en- 
deavor. Nevertheless,  considerable  connection  is  maintained  with 
the  higher  committees.  A  portion  of  the  campaign  funds  may 
be  assigned  to  assist  in  and  help  out  a  local  contest.  Speakers 
and  printed  material  may  be  sent  to  a  district  on  request  of  the 
local  committee,  and  in  some  instances  the  active  work  of  the 
campaign  within  the  city  may  be  carried  out  largely  by  the  state 
or  national  committee.  Generally,  however,  the  theory  is  held 
that  although  the  national*  or  state  party  is  strengthened  by  local 
successes  the  management  of  the  local  campaign  is  left  to  its 
own  committee. 

A  political  campaign  is  an'  organized  effort  to  arouse  the  campaign 
interest  and  enthusiasm  of  the  party  members  and  to  attract 
the  independent  voters  to  the  support  of  the  party  candidates. 
The  methods  by  which  this  is  accomplished  vary  with  time  and 
locality,  but  there  are  common  features  found  in  different 
degrees  in  all  campaigns.  These  may  be  classified  as  the  work 


130    THE  GOVERNMENT  OF  THE  UNITED  STATES 

in  registration  and  the  canvass  of  the  voters  ;  informing  the 
voters  concerning  the  issues  involved  and  the  personality  of 
the  candidates ;  and  the  attempt  to  arouse  enthusiasm  and 
passion  in  order  to  produce  results  on  election  day. 

(z)  Registra-  The  campaign  may  be  said  never  to  end  as  far  as  the  work 
of  the  organization  with  regard  to  registration  is  concerned.  In 
every  voting  district  a  member  of  the  organization  attempts  to 
see  that  every  newcomer  has  his  name  on  the  registration  lists. 
In  those  states  which  require  registration  for  every  election  this 
work  must  be  performed  almost  every  year  for  the  entire 
electorate.  In  other  states  the  work  is  less  laborious  and  is 
confined  to  getting  the  names  of  newcomers  upon  the  list  and  to 
seeing  that  none  has  been  dropped  incorrectly.  As  each  party 
attempts  to  register  as  many  votes  as  possible  the  door  is  opened 
for  improper  and  fraudulent  registration.  Therefore,  to  prevent 
this,  the  organization  in  large  cities  employs  both  paid  and  volun- 
teer workers  and  even  detectives  to  examine  the  list  and  to  prevent 
the  addition  of  false  names  and  the  omission  of  correct  ones. 

(a)  canvass  Closely  connected  with  the  registration  is  the  canvass  of  the 
party  strength.  It  is  assumed  that  some  member  of  the  organi- 
zation knows  with  considerable  accuracy  the  party  strength 
within  his  district.  In  highly  organized  districts  this  can 
frequently  be  forecast  within  a  few  votes.  In  less  highly 
organized  districts  the  party  members  report  the  general .  drift 
of  sentiment  to  the  leaders.  In  the  Republican  party  in 
Pennsylvania,  where  the  organization  is  highly  efficient,  it  has 
happened  that  "  during  a  heated  campaign,  every  tenth  or  even 
every  fifth  man  in  the  party  is  given  an  official  position.  He 
becomes  a  party  watcher,  whose  especial  duty  it  is  to  learn  the 
exact  political  opinions  and  intentions  of  the  few  voters  assigned 
to  his  observation."  1  Sometimes  this  canvass  is  carried  on  with 
businesslike  efficiency,  and  card  catalogues  are  made  showing 
the  loyalty  and  opinions  of  the  voters  and  the  persons  likely  to 
influence.  Whatever  the  method,  the  canvass  is  of  great  value 
in  determining  the  subsequent  course  of  the  campaign.  If  a  safe 
party  majority  is  shown,  the  organization  is  relieved  from  the 
necessity  of  an  expensive  campaign.  On  the  other  hand,  if 

1  Jesse  Macy,  Party  Organization  and  Machinery,  p.  121. 


PARTY  ORGANIZATIONS  131 

the  canvass  shows  dissension  and  a  tendency  towards  inde- 
pendent voting,  a  larger  proportion  of  the  resources  of  the 
organization  must  be  used  to  secure  a  satisfactory  victory.  In 
close  campaigns  a  second  canvass  may  be  conducted  in  order 
to  show  what  success  has  attended  the  work  of  the  organization, 
and  the  necessity  of  renewed  effort.  Registration  is  always 
conducted  by  the  state  or  local  committees,  while  the  canvass  is 
generally  also  their  work,  although  in  doubtful  states  the  national 
committees  may  assist  with  funds. 

All  parties  have  at  different  times  heralded  the  fact  that  this  (3)  Printed 
was  to  be  a  campaign   of   "  education."    It  may  be   doubted,  appea 
however,  whether  documents,  newspaper  articles,  and  speeches 
make  any  very  great  appeal  to  the  intellect  of  the  voters.    They 
do  convey   much   information,   generally  correct,   though   one- 
sided ;  they  do  present  well-reasoned  arguments  based,  however, 
upon  rather  prejudiced  evidence.    Nevertheless,  this  method  of  [campaigns 
campaign  does  make  more  of  an  appeal  to  the  reason  of  the  ° 
voter  than  the  speeches,  clubs,  and  processions,  which  are  frank 
appeals  to  the  emotions.    These  so-called  appeals  to  reason  are 
in  the  form  of  printed  matter.    They  include  documents  and  [Documents] 
speeches  and  are  issued  in  great  profusion.    In  one  day  in  the 
1900  campaign  the  Republican  shipping  room  sent  out  three 
and   a  quarter   tons   of   documents   and  received   four  million 
copies   of  a  single   speech ;  while  the   Democrats  issued  over 
pight  million  copies  of   Bryan's  letter  of   acceptance.1    These 
iocuments  are  generally  sent  out  in  bundles  to  the  state  com- 
Tiittee,  which  passes  them  on  to  the  local  committees,  which  in 
heir  turn  are  supposed  to  distribute  them.    This  is  not  always 
lone,  however,  and  the  waste  is  very  great.    A  second  appeal  [Newspapers] 
s  made  by   the   newspapers.    In    1900  the   Republican   Press 
Bureau  at  Chicago  employed  five  experts  to  write  articles  to  be 
nserted   in   the   newspapers.    Many   county   weeklies    received 
'patent  insides  "  ;  over  two  hundred  were  provided  with  stereo- 
:yped  matter ;  while  proof  slips  were  mailed  to  the  more  impor- 
ant  papers.    It  was  estimated  that  two  thousand  papers  had  no 
Dther  political  news  or  discussion  than  what  was  sent  them,  and 
:hat  four  thousand  published  articles  and  editorials  regularly.2 

1  Re-view  of  Re-views,  Vol.  XXII  (1900),  pp.  559,  560.         2  Ibid.  p.  551. 


132    THE  GOVERNMENT  OF  THE  UNITED  STATES 


[Posters  and 
advertise- 
ments] 


(4)  Official 
state  cam- 
paign 
textbooks 


(5)  Political 
meetings  for 
enthusiasm 
rather  than 
discussion 


(6)  Proces- 
sions 


Posters  are  printed  and  distributed  in  great  numbers ; 1  adver- 
tisements are  inserted  in  the  daily  and  weekly  papers  and  in 
the  magazines.  In  fact,  in  recent  years,  the  use  of  advertising 
has  probably  increased  in  greater  proportion  than  almost  any 
other  branch  of  the  printed  appeals. 

Several  states,  following  the  example  of  Oregon,2  issue  under 
the  state  authority  textbooks  containing  the  necessary  informa- 
tion for  the  voters,  together  with  appeals  for  support  of  candi- 
dates and  party  measures.  Every  candidate  must  pay  for  at  least 
one  page  and  may  buy  more.  Parties  are  allowed  a  certain  amount 
of  space  in  which  to  make  appeals,  and  those  favoring  or  oppos- 
ing the  measures  placed  on  the  ballot  by  the  initiative  or  refer- 
endum may  state  their  arguments.  In  Oregon  these  pamphlets 
are  printed  at  the  expense  of  the  state,  and  one  is  mailed 
eight  days  before  the  primaries  and  another  ten  days  before 
the  election. 

The  emotional  part  of  the  campaign  is  now  chiefly  confined 
to  meetings  —  "  rallies,"  as  they  are  called.  These  rallies,  which 
are  open  to  anyone-  interested,  are  attended  mostly  by  the  mem- 
bers of  the  party,  and  their  purpose  is  rather  to  confirm  the 
strength  of  the  wavering  and  to  arouse  the  enthusiasm  of  the 
faithful  than  to  convert  opponents.  The  rallies  vary  all  the  way 
from  a  great  mass  meeting,  held  in  a  large  center  and  addressed 
by  presidential  candidates  and  orators  of  national  distinction, 
down  through  the  meetings  in  smaller  cities,  towns,  and  villages. 
In  addition  to  these  more  formally  planned  meetings,  there  are 
the  "  cart-tail "  or  "  soap-box "  speakers,  who  appear  almost 
nightly  in  the  districts  of  large  cities.  In  1900  over  six  hundred 
speakers  were  managed  from  the  Republican  headquarters  ini 
Chicago,  and  the  New  York  headquarters  had  several  hundred 
additional  orators.3  State  committees  also  employ  speakers  and 
arrange  meetings. 

Processions  and  parades  are  still  utilized  as  a  means  of  making 
a  demonstration,  but  the  picturesque  torchlight  procession  has 


1  In  1900  the  Republicans  put  out  over  half  a  million  of  a  single  poster. 

2  Oregon,  Indiana,  North  Dakota,  Wyoming.  —  P.  O.  Ray,  An  Introduction 
to  Political  Parties  and  Practical  Politics,  pp.  199-200 

3  Review  of  Reviews,  Vol.  XXII  (1900),  p.  553. 


PARTY  ORGANIZATIONS 


133 


jipparently  lost  popularity.    In  its  place  rather  solemn  processions 
f  substantial  citizens  march  in  broad  daylight  when  they  may 
seen  and  their  influence  felt.    Another  method  of  rousing 
nthusiasm  is  by  the  party  club.    In  some  instances  these  clubs  (7)  ciubs 
re  permanent  affairs,  with  clubhouses  or  rooms  which  are  main- 
ined  throughout  the  year.    The  more  general  type,  however,  is 
he  campaign  club,  organized  sometime  during  the  summer  pre- 
ing  the  election.    Rooms  are  rented  or  meetings  are  held  in 
11s,  speakers  are  listened  to,  songs  are  sung,  and  sometimes 
efreshments  are  served.   In  large  cities  these  political  clubs  may 
under  the  patronage  of  some  local  leader,  who  meets  a  portion 
f  the  expense  and  utilizes  the  enthusiasm  generated  for  his  own 
dvancement  as  well  as  that  of  the  party.    Instances  are  not  want- 
g  where  the  members  of  a  club  have  obtained  their  support 
a  species  of  blackmail  levied  upon  the  merchants  as  well  as 
pon  the  candidates. 

Political  campaigns  are  expensive.   Writing  in  1910,  Mr.  Her-  campaigns 
rt  Parsons,  chairman  of  the  Republican  county  committee  of 
e  county  of  New  York,  asserted  that  the  committee  needed 
208,200  to  conduct  a  campaign  in  that  single  county.    This 
,  it  must  be  remembered,  an  "  off  year,"  when  the  enthusiasm 
f  a  presidential  election  was  not  operative,  and  also  when  the 
traordinary  expenses  attendant  upon  such  a  campaign  were  not 
essary.    This  sum,  however,  did  not  include  the  money  spent 
the  state  committee  in  the  district.1    For  presidential  cam- 
igns  vastly  greater  sums  are  collected.    The  maximum  was 
robably  reached  in  1 896,  when  it  is  believed  that  the  Republican 
tional  committee  controlled  over  seven  million  dollars.2    From 
at  huge  sum  there  has  been  a  rapid  and  steady  decline.    The 
epublican  fund  of  1900  was  about  three  million,  that  of  1904  less 
n  two  million,3  that  of  1908  a  million  and  a  half;  in  1916 
.bout  two  million  and  a  half  were  contributed.     Since  1 896  the 
emocrats  have  never  but  once  surpassed  the  Republicans,  and 

1  Herbert  Parsons,  «  Why  a  Political  Party  needs  Money,"  Outlook,  Vol.  XCVI 


o),  p.  351. 

R.  Ogden,  "The  New  Powers  of  the  National  Committee,"  Atlantic  Monthly, 
rol.  LXXXIX  (1902),  p.  76. 

8  Walter  Wellman,  "  Management  of  the  Taft  Campaign,"  Review  of  Reviews t 
rol.  XXXVIII  (1908),  p.  432. 


134    THE  GOVERNMENT  OF  THE  UNITED  STATES 

that  was  in  1912  when  the  Republicans  were  split  and  the  Demo- 
crats collected  a  little  more  than  a  million,  while  the  Republicans 
had  more  than  nine  hundred  thousand  and  the  Progressives 
more  than  six  hundred  thousand.1 

sources  of  These  vast  sums  were  collected  from  various  sources.   The 

ton£ign       subscriptions  of  persons  of  moderate  means,  even  the  dollar 
contributions,  amount  in  the  aggregate  to  large  sums.   The  main 
reliance,  however,  is  put  on  the  gifts  of  the  wealthy  supporters 
of  the  party.   These  not  infrequently  give  huge  sums  and  rightly 
or  wrongly  are  supposed  to  have  acquired  a  weighty  influence  in 
dictating  the  policy  of  the  government  should  the  party  be  suc- 
contributions  cessful.    Previous  to  1907  corporations  interested  in  the  success 
tionl  and°r*~  of  the  party  appropriated  sums  as  large  as  one  hundred  thousand 
ofo£ce'nU    dollars  from  tne  company's  treasury.  In  former  times  these  assess- 
hoiders  pro-     ments  were  levied  upon  officeholders,  but  this  practice  was  for- 
bidden, as  far  as  federal  officeholders  were  concerned,  by  the 
Civil  Service  Act  of  1883.    In  state  and  local  elections  the  can- 
didates themselves  often  make  contributions  in  proportion  to  the 
salaries  of  the  offices  they  hope  to  obtain.  In  communities  where 
the  machine  is  corrupt,  law  breakers,  ranging  from  saloon  keepers 
to  gamblers  and  criminals,  are  sometimes  forced  to  contribute  in 
order  to  gain  immunity  from  prosecution.    But,  however  the  fund 
is  collected,  it  was  until  recently  spent  without  public  accounting, 
with  no  restrictions  as  to  the  amount  and  few  as  to  the  purpose. 
The  legitimate  expenses  of  a  campaign  are  large.     Head- 
quarters,  whether  for  national,  state,  or  local  committees,  must 
Head-        be  maintained  with  a  corps  of  paid  and  skillful  assistants.    The 
-   work  in  registration  in  New  York  County  in  a  presidential  year 
tion  required  over  thirteen  thousand  dollars,  while  in  1910  twenty- 

seven  thousand  dollars  was  spent  in  guarding  against  fraudulent 
(3).Adver-  registration.  Advertising  in  this  same  county  cost  nearly  thirty 
thousand  dollars,  and  a  single  political  meeting,  together  with  the 
torchlight  procession,  cost  in  1908  about  ten  thousand  dollars. 
Forty  thousand  dollars,  or  forty  dollars  to  each  of  a  thousand 
election  districts»  was  appropriated  for  the  purpose  of  "  getting 
out  the  vote"  on  election  day.2  In  a  national  campaign  most 

1  American  Year  Book  (1912),  p.  44. 

2  This  information  is  taken  from  the  article  by  Herbert  Parsons  already  cited. 


PARTY  ORGANIZATIONS  135 

of  the  same  expenses  occur  with  huge  additions  for  publication, 
speakers,  transportation,  and  so  forth.  In  addition  it  is  customary 
to  aid  state  committees  with  generous  sums  in  case  of  need. 

The  illegitimate  expenses  of  a  campaign  are  those  forbidden  illegitimate 
both  by  the  Corrupt  Practices  Act  and  by  general  statutes.    One  expenses 
of  the  most  frequent  in  large  communities  is  payment  for  false 
registration.    The  most  common  illegitimate  use  of  money,  how- 
ever, is  some  form  of  bribery  by  which  the  voter  is  either  paid 
for  his  vote  or  paid  not  to  vote  for  the  other  party. 

Strictly  a  political  party  was  until  recently  a  purely  private  Regulation  of 
organization  existing  outside  of  the  law  and  subject  only  to  the  ?ation°andni" 
voluntary  regulations  which  its  members  might  impose  upon  it.  JyeJ^°n8 
Such  a  conception  prevailed  until  well  into  the  middle  of  the 
nineteenth  century,  and  effective  regulation  did  not  begin  until 
the  twentieth  century.    Two  lines  of  regulation  were  attempted. 
The  first  related  to  the  conduct  of  the  elections,  the  printing  (i)  conduct 
of  the  ballots,  and  the  making  of  returns.    With  the  exception 
of  the  statutes  prescribing  the  method  of  the  choice  of  United 
States  senators1  and  the  "  Force  laws"  adopted  to  enforce  the 
Fifteenth  Amendment2  by  establishing  federal  control  over  the 
elections  for  Congressmen  and  presidential  electors,  the  federal   (a)  Elections 
government  made  little  attempt  to  regulate  or  control  either  the  uiated  oniyg 
elections  or  the  operations  of  political  organizations.    The  con-  bystate 
duct  of  elections  and  the  definition  of  illegal  acts  are  almost 
entirely  in  the  hands  of  the  states  and  vary  greatly.    Aside  from 
a  few  federal  regulations  to  be  mentioned  later,  each  state  may 
determine  to  follow  the  course  which  most  appeals  to  it. 

In  the  first  Force  Act  of  1871  (February  28),  besides  defining  The  Force 

,       r   ,  .  , .  .     .      Act  of  1871 

certain  unlawful  acts  and  providing  penalties  for  the  same,  it  is 
provided  that  votes  for  representatives  in  Congress  should  be 
only  on  written  or  printed  ballots.  In  the  act  apportioning 
representation,  after  the  census  of  1870,  the  Tuesday  after  the 
first  Monday  in  November,  beginning  in  1876,  was  fixed  as 
the  day  for  the  choice  of  representatives  and  presidential 
electors.3  This  was  amended  before  it  went  into  effect,  to  allow 

1  14  Stat.  at  Large  (1866),  p.  243 ;   17  Stat.  at  Large  (1871),  p.  13. 

2  16  Stat.  at  Large  (1870),  p.  144  ;  16  Stat.  at  Large  (1871),  p.  433  ;  17  Stat. 
,at  Large  (1871),  p.  13.  3  17  Stat.  at  Large  (1870),  p.  28. 


SUtc  regu- 
lation to 
weaken  con- 
trol of  the 
organization 


(i)  Nomina- 
tion by 
petition 


(a)  Popular 
election  of 
ittees 


(3)  Direct 
primaries 


136    THE  GOVERNMENT  OF  THE  UNITED  STATES 

those  states  whose  constitutions  provided  for  another  date  to 
retain  the  old  date.1  These  few  laws  made  up  the  whole  attempt 
at  federal  regulation  of  elections. 

Meantime  groups  of  states  were  discovering  that  the  mere 
regulation  of  the  conduct  of  elections  was  not  sufficient  to 
break  the  hold  of  a  powerful  party  organization,  still  less  of  a 
machine.  Consequently  statutes  were  enacted  to  place  the  con- 
trol of  the  party  in  the  hands  of  the  voters.  These  group 
themselves  around  the  provisions  for  nomination  by  petition, 
the  control  of  the  primaries,  the  choice  of  the  committees  by 
the  voters,  and  finally  in  an  assault  upon  the  convention  as  the 
citadel  of  the  machine  by  means  of  the  direct  primary.  The 
significant  features  of  these  movements  have  been  discussed, 
but  it  is  necessary  to  remember  that,  although  they  are  state 
laws  primarily  for  the  regulation  of  the  action  of  political  parties 
within  the  state,  they  affect  equally  the  action  of  the  parties 
wnen  performing  national  functions.  Thus  representatives  in 
different  states  may  be  nominated  in  different  ways,  and  dele- 
gates to  the  national  convention  may  be  required  to  be  chosen 
by  state  law  in  a  way  unsatisfactory  to  the  national  committee  of 
the  party.  This  conflict  actually  occurred  in  1912,  and  was  boldly 
met  by  the  Republican  convention  in  declaring  that  its  delegates 
should  be  chosen  according  to  party  rules  rather  than  state  law. 

In  one  feature  of  the  regulation  of  the  activities  of  political 
parties  the  state  and  national  governments  have  proceeded  along 
parallel  lines.  These  deal  with  party  finances.  The  insurance 
investigations  in  New  York  in  1904  and  1905  disclosed  the 
fact  that  large  corporations,  particularly  life  insurance  companies, 
were  giving  large  sums  to  the  campaign  funds  of  political 
parties.  Subsequent  investigations  of  railroads  showed  similar 
practices.  As  usual  the  states  took  the  lead,  and  laws  were 
passed  forbidding  corporations  to  contribute  to  any  political 
campaign,  requiring  the  publication  of  the  contributions  and 
expenses  above  a  certain  amount,  and  in  some  instances  fixing 
the  amount  which  might  be  spent  in  behalf  of  any  candidate, 
sometimes  covering  the  election  only,  and  sometimes  including 
both  nomination  and  electoral  campaign.  In  1907  the  federal 

1  1 8  Stat.  at  Large  (1872),  p.  400. 


PARTY  ORGANIZATIONS  137 

government  followed  suit.    The  statute  made  it  unlawful  for  any  state  and 

national  bank  or  corporation  organized  under  public  law  to  con-  fotwdcon^8 

tribute  to  any  campaign  fund ;   and  also  forbade  contributions  corporations7 

from  all    other   corporations   to   the   campaign    funds   of    any  and  require 

presidential    elector,    representative,    or   senator.1    Three   years 

later  it  was  made  compulsory  for  every  national  political  party 

to  file  their  accounts  showing  the  contributions  and  expenses 

with*  the  clerk  of  the  House  of  Representatives  within  thirty 

days  after  the  elections.2    In  1911  this  was  still  further  amended 

to  require  that   the   statements   must   be   filed   both  ten   days 

before  the  election  and  thirty  days  after.     Moreover,  senators 

and  representatives  must  file  returns  for  the  expenses  incurred 

at  the  primaries.    Finally,  the  amount  which  could  be  legally  They  also 

spent  in  a  senatorial   campaign  was   limited  to  ten  thousand 

dollars,  and  in  a  congressional  to  five  thousand  dollars.    In  no 

case,  however,  could  a  candidate  for  either  office  spend  more 

than  was  allowed  by  the  laws  of  his  state.3 

Much  has  been  written  about  the  evils  of  party  organizations,  party  organi- 
and  many  attempts  have  been  made  to  destroy  them.    Evils  do        °ne< 
exist  and  undoubtedly  will  continue  to  exist,  but  the  fact  that 


the  organizations  are  susceptible  of  misuse  should  not  obscure  and  express 
the  fact  that  they  are  indispensable.  They  perform  a  function 
absolutely  necessary  to  the  conduct  of  the  government,  and 
without  them  public  opinion  could  not  be  solidified,  nor  could 
united  action  be  taken.  When  it  is  remembered  that  over 
eighteen  million  voters  must  express  their  preference  for 
presidential  electors  to  choose  the  president,  and  the  same 
number  divided  into  groups  must  unite  upon  candidates,  the 
necessity  of  organization  may  be  somewhat  appreciated.  Even 
in  the  choice  of  representatives  over  two  hundred  thousand 
people  are  concerned,  a  population  larger  than  most  of  the 
states  at  the  time  of  the  adoption  of  the  Constitution. 

Again,  as  has  been  pointed  out,  while  in  the  English  par-  American 
liamentary  system  the  identity  of  party  organization  and  the  systfmf18 
state  executive  insures  the  performance  of  the  wishes  of  the  contrasted 

1  59th  Cong.,  26  Sess.,  chap.  420 ;  34  Stat.  at  Large,  p.  864. 

2  6ist  Cong.,  2d  Sess.,  chap.  392  ;  36  Stat.  at  Large,  p.  822. 

8  May  19,  1911,  62d  Cong.,  ist  Sess.,  chap.  33;  37  Stat.  at  Large,  p.  25. 


Harmony 
between 
national 
and  state 
parties 


Municipal 
parties  most 
effective 
when  in  har- 
mony with 
state  or 
national 
parties 


Party  to  be 
completely 
effective  must 
control  state 
and  city  as 
well  as 
national 
government 


1 38    THE  GOVERNMENT  OF  THE  UNITED  STATES 

majority,  no  such  thing  is  possible  in  the  United  States.  The 
national  parties  are  concerned  not  merely  with  the  choice  of  the 
president,  but  they  attempt  also  to  gain  party  control  over  both 
Houses  of  Congress  in  order  that  their  policies  may  be  carried  out. 

Constitutionally  there  are  few  points  of  contact  between  the 
parties  organized  for  national  purposes  and  the  parties  organized 
within  the  states.  But  since  they  operate  upon  the  same  set 
of  voters,  and  since  very  often  the  state  laws  determine  .to  a 
large- extent  the  conduct  of  the  party  and  the  course  of  the 
campaign,  harmony  if  not  identity  of  organization  is  necessary. 
Since,  moreover,  in  the  federal  system  the  police  powers  are  left 
to  the  states,  a  party  having  a  national  policy  affecting  indi- 
viduals in  their  private  relations  must  control  the  states  in  order 
to  make  it  effective. 

In  like  manner,  although  -to  a  less  degree,  the  political  parties 
of  cities  must  be  organized  in  harmony  with  those  of  the  state 
and  nation.  Party  efficiency  in  carrying  state  and  national 
elections  teaches  this  from  one  point  of  view.  From  another 
point,  as  well,  the  city  and  state  political  organizations  are  mutu- 
ally concerned.  Until  absolute  home  rule  for  municipalities  is 
achieved  —  a  condition  extremely  unlikely  ever  to  be  realized  — 
the  city  must  be  dependent  upon  if  not  absolutely  subject  to  the 
state.  The  state  legislature  makes  the  laws,  the  state  officials, 
if  not  administering  them,  at  least  supervise  their  administration. 
Therefore,  greater  harmony  and  less  friction,  as  well  as  greater 
satisfaction,  come  when  the  same  party  controls  both  the  city 
and  state  government.  For  this  purpose  municipal  parties,  like 
state  parties,  adopt  the  names  of  the  national  parties  and  pre- 
tend to  stand  for  the  same  principles.  But  more  important  than 
identity  of  principles  is  harmony  if  not  identity  of  organizations, 
so  that  the  municipal  party  may  have  the  protection  and  reap 
the  benefits  of  the  dominant  organization. 

A  political  party  has  been  correctly  defined  as  a  permanent 
organization  for  the  purpose  of  gaining  control  of  the  govern- 
ment by  the  election  of  its  candidates  in  order  that  it  may  di- 
rect the  public  policy  of  the  government.  Since,  however,  the 
sphere  of  government  is  divided  between  the  nation,  state,  and 
city,  to  impose  a  comprehensive  policy  upon  all  of  these  would 


PARTY  ORGANIZATIONS  139 

require  control  of  these  three  instruments  of  government.  To 
accomplish  this  most  efficiently  and  successfully  the  organization 
or  instruments  of  the  party  within  the  different  divisions  must 
be  coordinated  and  subordinated.  This  is  exactly  what  happens 
in  a  presidential  campaign.  There  national,  state,  and  local  or- 
ganizations are  all  working  for  a  single  end ;  there  is  demon- 
strated the  necessity  for  a  single  party  for  state  and  city.  But  in 
state  and  local,  as  well  as  in  presidential,  campaigns,  the  action  of 
the  government  is  best  directed  through  interrelated  organizations. 


CHAPTER  VII 


Experiences 
of  Confedera- 
tion showed 
need  of  sin- 
gle strong 
executive 


Term  of 
president, 
four  years 


Two- term 
precedent 


Attempted 
violation  by 
Grant,  1880 

Roosevelt, 
1912 


THE  ELECTION  OF  THE  PRESIDENT 

CONSTITUTIONAL  AND  LEGAL  PROVISION  CONCERNING  THE 
ELECTION  OF  THE  PRESIDENT 

The  experience  under  the  Confederation  convinced  the  mem- 
bers of  the  convention  of  1787  of  the  necessity  of  creating  a 
strong  executive.  A  few  proposals  were  made  looking  toward 
an  executive  council,  but  after  comparatively  little  discussion  the 
convention  decided  upon  a  single  executive  —  a  president. 

The  method  of  choice  and  the  term  of  the  president  required 
longer  consideration.  The  fear  of  despotism  and  the  fixed  habit 
of  frequent  elections  each  tended  to  reduce  the  length  of  the  term, 
while  the  obvious  advantage  which  experience  would  add  argued 
against  any  limitation  upon  reelection.  It  was  finally  decided 
that  the  term  should  be  four  years,  with  no  restrictions  upon 
reelection.  The  age  of  Washington  and  his  weariness  of  party 
conflicts  caused  him  to  retire  at  the  end  of  his  second  term. 
Jefferson  followed  his  example,  although  he  emphasized  the 
theoretical  dangers  of  a  third  term.  Thus  a  precedent  was 
created  which,  although  strengthened  by  time,  has  no  legal  but 
a  strong  moral  force.  Only  two  presidents  have  dared  to  ques- 
tion it.  General  Grant  vainly  sought  renomination  from  the 
Republican  party  in  1880,  and  Theodore  Roosevelt  also  sought 
in  vain  the  Republican  nomination  in  1912.  The  supporters  of 
Grant  acquiesced  in  his  defeat  and  supported  the  regular  party 
nominee.  The  followers  of  Roosevelt,  however,  created  a  new 
organization,  which  gained  more  votes  than  were  cast  for  the 
regular  Republican  candidate.  The  issue  was  not  solely  upon 
the  question  of  the  third  term,  nor  can  it  be  established  that  the 
breaking  of  the  long-established  tradition  lost  Roosevelt  many 
votes  which  he  otherwise  would  have  received ;  nevertheless, 
his  action  was  felt  to  be  contrary  to  the  traditional  American 

140 


THE  ELECTION  OF  THE  PRESIDENT  141 

practice  and  furnished  a  point  of  attack  for  his  opponents. 
Whether  his  defeat  should  be  considered  to  have  strengthened 
the  tradition  is  a  matter  of  opinion ;  and  it  is  also  doubtful 
whether  the  tradition  would  still  have  operated  against  him  had 
he  been  the  candidate  of  one  of  the  long-established  parties. 

The  method  of  electing  the  president  long  vexed  the  conven-  Proposed 
tion.    Opinion,  almost  unanimous  against  direct  election  by  the  congress*7 
people,  seemed  hopelessly  divided  as  .to  the  actual  process  to  be  JoSm^wn 
employed.   The  prevailing  sentiment  during  the  early  weeks  of  >the  theory  of 

.         ,    .  .  separation  of 

the  debates  was  overwhelmingly  in  favor  of  an  election  by  Con--:  powers  and . 
gress,  and  this  method  was  twice  adopted  —  once  unanimously  jj^mentar^ 
—  only  to  be  reconsidered.    Had  such  a  plan  been  the  final  one  JJJJf^ 
it  is  conceivable  that  the  American  theory  of  separation  of  powers 
might  have  broken  down,  and  it  is  possible  that  the  English 
system  of  responsible  or  parliamentary  government  might  have 
in  time  developed.     Finally,  in  the  last  days  of  the  convention 
the  method  of  indirect  election  by  electors  chosen  by  the  states 
was  agreed  on. 

The  finished  draft  of  the  Constitution  reduced  the  action  of  state  control 
Congress  to  a  minimum.    Article  II,  Sect,  i,  clause  2,  provided  ofTresiden- 
that  "each  State  shall  appoint,  in  such  manner  as  the  Legis-  tialelector* 
lature  thereof  may  direct,  a  number  of  Electors,  equal  to  the 
whole  number  of  Senators  and   Representatives  to  which  the 
State  may  be  entitled  in  the  Congress.  .  .  ."    The  method  of 
choice  of  electors  is  thus  absolutely  in  the  hands  of  the  state 
legislatures,  and  so  aDmple^e_j£jl>§u^^  that 

they~may  vest  their  appointment  inam[__bpdy_they^S£e_fit  —  "in 
a  board  of  bank  directoi^^^uTnpike T  c^rpofadon^  or  in  a  syna- 
gogue," as  one  writer  has  put  it.1  As  a  matter  of  fact,  however, 
the  electors  have  always  been  chosen  either  b£  the  legislatures 
or  by  direct  election  within  the  states.  UntilM8i2  the  majority  NOW  chosen 
of  the  states  by  law  vested  the  choice  of  the  electors  in  the  by 
legislature,  although  at  every  election  there  was  at  least  one  v 
state  in  which  the  electors  were  chosen  by  popular  vote.  From 
1812  onward  the  majority  of  the  states  have  followed  the  plan 
of  popular  election.  South  Carolina,  however,  did  not  adopt  it 

1  Dougherty,  The  Electoral  System  of  the  United  States,  p.  21;  quoted  by 
WUloughby,  The  Constitutional  Law  of  the  United  States,  Vol.  II,  p.  1126. 


I42    THE  GOVERNMENT  OF  THE  UNITED  STATES 
until  i860,  while  the  Colorado  constitution  of  1876  reverted  to 

the  older  method.1 

Whether  the  electors  should  be  chosen  by  districts  or  upon  a 
general  ticket  has  also  been  answered  variously.  At  first,  since 
fhe  electors  were  generally  chosen  by  the  legislatures  of  the 
states  the  state  was  regarded  as  the  constituency,  and  all 
electors  represented  the  majority  of  the  legislature,  while  the  mi- 
ority  in  the  state,  no  matter  how  large,  was  unrepresented, 
ertheless,  in  some  of  the  more  democratic  communities,  the 
ts  of  the' individual  local  districts  were  recognized.  8^1828 
the  number  of  states  which  chose^dejctojj^y^^ 
dined  to  foolTand  fiuiu  lliirlime  on  the  general  rule  was  to 
choosTaTTtrie  electors  upon  a  single  general  ticket.  One  reason 
which  strengthened  this  tende 
cal  parties  and  the  decline  in  importance  of  the  functions  of 
tRe  electors!  Although,  legally,  the  presidents  were  chosen  by  the 
electors,  the  electors  themselves  were  morally  bound  to  express 
the  will  of  the  popular  majority  within  the  state.  Party  policy 
made  it  of  advantage  that  the  electoral  vote  of  a  state  should  be 
as  large  as  possible  —  unanimous  if  possible  —  hence  the  district 
system  gave  place  to  the  general  ticket,  and  the  entire  electoral 
vote  was  determined  by  the  popular  majority  within  the  state, 
while  the  minority,  no  matter  how  large,  was  disregarded.  This 
practice  is  now  universal  in  all  states.  So  strong  had  this  custom 
become  that  when  in  1892  Michigan  experimented  with  the  dis- 
trict system,  the  law  was  questioned  in  the  courts.  The  Supreme 
Court  upheld  it  in  an  opinion  which  summarized  the  debate  in 
the  convention  and  the  practice  of  the  states.  The  portion  which 
bears  upon  the  particular  question  is  as  follows  : 

If  the  legislature  ^possesses  plenary  authority  to  direct  the  manner 
of  appointment,  and 'might  itself  exercise  the  appointing  power  by  joint 
ballot  or  concurrence  of  the  two  houses,  or  according  to  such  mode  as 
designated,  it  is  difficult  to  perceive  why,  if  the  legislature  prescribes 
as  a  method  of  appointment  choice  by  vote,  it  must  necessarily  be  by 
general  ticket  and  not  by  districts.  In  other  words,  the  act  of  appoint- 
ment is  none  the  less  the  act  of  the  state  in  its  entirety  because  arrived 
at  by  districts,  for  the  act  is  the  act  of  political  agencies  duly  authorized 

1  ].  H.  Finley,  The  American  Executive,  p.  332. 


THE  ELECTION  OF  THE  PRESIDENT  143 

to  speak  for  the  state,  and  the  combined  result  is  the  expression  of  the 
voice  of  the  state,  a  result  reached  by  direction  of  the  legislature,  to 
whom  the  whole  subject  is  committed.1 
* 

This  use  of  general  tickets  and  large  constituencies,  from  president  not 
which  minorities  are  discarded,  still  further  emphasizes  the  fact  JJ^uiar  vote 
that  the  president  is  no^elected  by  popular  vote/  Out  of  the 
ten  elections  held  since  1880  the  successful  candidate,  although 
receiving  the  majority  of  the  electoral  votes  in  all  the  elections, 
has  received  a  majority  of  the  popular  vote  only  five*  times. 
For  example:  in  the  election  of  1912  President  Wilson  with  a 
popular  vote  of  a  little  over  six  million  gained  four  hundred 
and  thirty-five  electoral  votes.  His  leading  opponent,  ex-  President 
Roosevelt,  polled  more  than  four  million  votes  and  gained  only 
eighty-eight  electoral  votes  ;  while  the  entire  popular  (vote  cast  for 
all  the  candidates  other  than  President  Wilson  was  more  than 
eight  million,  and  resulted  in  only  ninety-six  electoral  votes. 

Certain  very  important  consequences  result  from   this  con-  Election  by 
dition.     Politicians  are  led  to  concentrate  their  attention  upon  J^o?  gen- 

doubtful  states  which  have  a  large  electoral  vote.  Thus,  in  the  erai  tickets 

lead  to  con- 
election    of    1884   the   Democrats   were  successful    in  carrying  centration 

New  York  by  a  majority  of  only  about  a  thousand  votes.    These  states  „ 
thousand  votes,  however,  determined  the  character  'of  the  thirty- 
six  electoral  votes  of  New  York,  which  in  turn  determined  the 
election  of  President  Cleveland.    Hence,  in  a  closely  contested  » 
election  the  value  of  even  a  small  majority  in  a  single  state 
becomes  so  important  that  the  temptation  to  bribery  and  corrup- 
tion becomes  enormous.    On  the  other  hand,  since  there  are  as 
many  electors  as  there  are  senators  and  representatives   conv 
bined,  a  majoj^y  of  jwhom 


candidate  must  have  more   than  merely   a   sectional   support,  sectionalism 
Through  the   massing  of  the  population  in  a  .few"  contiguous  pnr 
states,  an  unchecked  popular  election  might  result  in  a  sectional 
election.     But  unless  the  population   becomes  decidedly  more 
concentrated  than  it  is  at  present  such  a  result  is  impossible. 
It  is,   however,   entirely  possible  for  the   states  north   of  .the 
Ohio  River  to  control  the  majority  of  the  electoral  vote,  and 

1  McPherson  v.  Blacker,  146  U.  S.  i,  25-26. 


Electors 
chosen  in 
November 
meet  and 
vote  in  the 
following 
January; 
votes  counted 
in  February 


How  the 
electoral 
votes  are 
counted 


The  election 
of  1876 


144    THE  GOVERNMENT  OF  THE  UNITED  STATES 

since  the  Civil  War  this  has  been  the  case  in  every  election  in 
which  a  Republican  candidate  has  won  ;  but  such  a  majority  was 
obtained  only_by_o>mbir^^ 
Pacific  states,  thus  avoiding  the  taint  of  sectionalisrh. 

By  the  law  of  1845  the  electors  are  chosen  in  the  states, 
whatever  method  may  be  adopted,  on  the  same  day,  the  Tuesday 
following  the  second  Monday  in  November.  According  to  the 
act  of  1887  the  electors  must  meet  and  vote  within  the  various 
states  at  such  places  as  their  respective  legislatures  shall  direct, 
upon  the  second  .Monday  inthe  followingjanuary.  Upon  the 
second  Wednesday"  in  the  iollo>wkig^ebruarythe_  Senate  and 
House  meet  in^Jotnt-seSsion  m^-ther-ehaiTTber  of  the  House, 
where  the  president  of  the  Senate  opens  the  votes  of  the  various 
states,  and  four  tellers,  two  from  the  House  and  two  from  the 
Senate,  count  the  votes. 

It  is  to  be  noted  that  the  provision  of  the  Constitution1 
regarding  the  counting  of  the  votes  reads  as  follows :  "  .  .  .  the 
President  of  the  Senate  shall,  in  the  presence  of  the  Senate 
and  House  of  Representatives,  open  all  the  certificates,  and  the 
votes  shall  then  be  counted.  ..."  In  assuming  the  prerogative 
of  counting  the  votes,  which  involves  the  passing  upon  their 
validity,  Congress  has  usurped  a  function  which  the  framers  of 
the  Constitution  intended  to  be  entirely  in  the  hands  of  the 
states.  The  action  of  the  convention  would  lead  to  this  conclu- 
sion. During  the  first  sessions  the  sentiment  was  overwhelm- 
ingly in  favor  of  a  congressional  election,  but  in  the  final  draft 
Congress  was  reduced  to  a  mere  witness.  The  early  practice 
also  leads  to  the  same  belief;  for  until  1809  the  president  of 
the  Senate  opened  and  counted  the  votes,  the  Houses  acting 
merely  as  witnesses.  Not  until  182*1  did  Congress  claim  the 
power  to  pass  upon  disputed  returns.  Until  1876,  however,  the 
counting  and  passing  upon  disputed  votes  was  regulated  entirely 
by  resolutjoji^l£ojTgr£ss.  and  the  duty  of  the  president  of  the 
Senate  was  confined  to  merely  opening  the  vQtes.  In  the 
election  of  1876  four  states  sent  plural  returns,  in  all  twenty- 
one  votes  were  in  dispute,  any  one  of  which  would  have  elected 
the  Democratic  candidate.  Two  questions  were  involved  :  Which 

1  The  Constitution  of  the  United  States,  Amendment  XII. 


THE  ELECTION  OF  THE  PRESIDENT  145 

of  the  returns  were  the  legal  ones,  and  who  should  pass  upon 

the  question  of  the  legality  ?  Since  the  Houses  were  of  opposite 

political  complexion  no  joint  action  was  possible.    Recourse  was 

had  to  the  creation  of  an  electoral  commission,  consisting  of  The  electoral 

five  members  of  the  House,  five  from  the  Senate,  and  five  of  c 

the  Justices  of  the  Supreme  Court,  who  should  have  power  to 

pass   upon   the.  validity  of   the   disputed   returns.    This   body,. 

to  say  the  least,  was  absolutely  extra-legal  if  not  unconstitutional, 

yet  so  strong  had  the  habit  become  of  allowing  Congress  to 

pass  upon  the  returns  and  to  count  the  votes,  and  so  great  did 

the  crisis  seem  that  this  method  was  acquiesced  in,  although 

the  defeated  candidate  polled  a  popular  vote  of  over  two  hundred 

and  fifty  thousand  more  than  the  successful  one. 

In  1887  a  law  was  passed  to  prevent  a  recurrence  of  this  Method  of 
danger.  In  brief,  the  act,  which  is  extremely  long  and  detailed,  votes  aSer- 
provides  that  the  state  authorities  shall  by  certain  forms  certify  {^of^ss? 
to  the  validity  of  the  choice  of  electors  of  the  state,  and  the 
returns  from  those  so  lawfully  certified  shall  not  be  questioned 
by  Congress.  But  section  4  of  the  act  goes  on  to  say  that  "  the 
two  Houses  concurrently  may  reject  the  vote  or  votes  when  they 
agree  that  such  vote  or  votes  have  not  been  so  regularly  given 
by  electors  whose  appointment  has  been  so  certified."  Senator 
Sherman  declared  :  "  That  is  a  dangerous  power.  It  allows  the 
two  Houses  of  Congress,  which  are  not  armed  with  any  consti- 
tutional power  whatever  over  the  electoral  system,  to  reject  the 
vote  of  every  elector  from  every  state,  with  or  without  cause,  pro- 
vided they  are  in  harmony  in  that  matter."  l  Nevertheless,  al- 
though the  constitutionality  of  the  act  has  been  questioned  by 
theorists,  and  although  not  all  the  dangerous  possibilities  are 
satisfactorily  met,  it  has  two  merits :  it  perpetuates  a  system 
which  has  had  the  sanction  of  nearly  a  century  of  usage,  and  it 
makes  it  practically  impossible  for  the  dangers  of  1876  to  recur. 

According  to  the  original  form  of  the  Constitution  the  electors  Defects  in 
were  to  vote  for  two  persons  without  designation  of  office,  and  method1  of 
the  candidate  who  received  the  highest  vote,  provided  it  was  a 
majority,  was  declared  president,  and  the  candidate  obtaining  the 

1  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  II, 
p.  1137  ;   see  also  Dougherty,  The  Electoral  System  of  the  United  States. 


I46    THE  GOVERNMENT  OF  THE  UNITED  STATES 

next  highest  vote,  vice  president.    The  early  elections  revealed 
two  serious  defects  in  this  method.    It  was-^eife^tlypo^ible^r 
(I)  present  the  president  and  vice  president  tobe^of_o^pjite^H^rFis 
'n         was  the  case"ln~T797^ieirnie~Fe^eralist  Adams  found  himselt 
ired  with  his  most  bitter  opponent,  Jefferson.    Again  in  1800 
all  the  Democrats  desired  Jefferson  as  president,  while  few  would 
have  wished  to  see  Burr  in  that  office ;  yet  party  discipline  was 
(a)  Tie  vote,   so  strong  that  Jefferson  and  Burr  each  received  the  same  num- 
ber of  votes.    In  such  a  case  the  Constitution  provided  : 

If  there  be  more  than  one  who  have  such  majority,  and  have  an  equal 
number  of  votes,  then  the  House  of  Representatives  shall  immediately 
choose  by  ballot  one  of  them  for  President ;  and  if  no  person  have  a" 
majority,  then  from  the  five  highest  on  the  list  the  said  House  shall* 
in  like  manner  choose  the  President.1 


The  Twelfth 
Amendment 


Provisions 
for  choice  of 
president  by 
the  House 


Provisions  for 
choice  of  vice 
president  by 
the  Senate 


To  remedy  these  conditions  the  Twelfth  Amendment  was 
adopted,  which  provided  for  the  separate  votmgjoj^thepresident 
and  vice-president.  Furthermore,  if  no  candidate  gains  ihVma- 
jority~oTtne  ^electoral  votes,  the  election  is  carriecl  to  the  House 
of  Representatives : 

.  .  .  then  from  the  persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the  House  of  Repre- 
sentatives shall  choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken^by_^tates,  the  repre- 
sentation from  each  State  having  one  vote ;  a  quorum  for  this  purpose 
shall  consist  of  a  member  or  members  from  two  thirds  of  the  States, 
and  a  majority  of  all  the  States  shall  be  necessary  to  a  choice, 

If  the  House  shall  not  succeed  in  choosing  the  president 
before  March  4,  the  vice  president  shall  become  president. 
The  provisions  concerning  the  election  of  the  vice  president  are 
similar  to  those  for  the  president,  except  that)  in  case  of  failure 
of  any  candidate  to 'get  a  majority  of  the  electoral  vote,  the 
election  is  taken  to  the  Senate,  where  a  choice  is  made  from  the 
two  highest  names  on  the  list.  A  quorum  consists  of  two  thirds 
of  the  whole  number  of  senators,  and  a  majority  of  the  whole 
number  is  necessary  for  choice. 

1  The  Constitution  of  the  United  States,  Article  II,  Sect,  i,  clause  2. 


THE  ELECTION  OF  THE  PRESIDENT  147 

Although  this  method  decreases  the  opportunity  for  intrigue  congress  not 
and  is  intended  to  insure  the  election  of  the  candidate  receiving  choSeMe 
the  highest  electoral  vote,  the  election  of  1825  showed  that  the  J^uSfgthe 
system  was  not  perfect.  At  this  election  the  four  candidates  highest  eiec- 
received  the  following  votes  :  Jackson,  99 ;  Adams,  84  ;  Craw- 
ford, 41  ;  Clay,  37.  Jackson  and  Crawford  were  from  the  same 
party,  and  Clay  and  Adams  were  both  from  that  section  of  the 
party  which  afterwards  became  the  Whig.  Calhoun,  the  candidate 
for  vice  president,  received  182  votes  and  was  therefore  declared 
elected.  The  election  of  the  president  was  thrown  into  the 
House.  Here  Clay  was  very  popular,  but  since  his  name  was 
fourth  on  the  list  he  could  not  be  considered  in  the  voting.  He, 
however,  used  all  his  influence  for  Adams  and  succeeded  in  ef- 
fecting his  election.  Without  considering  the  accusations  of  in- 
trigue which  were  made  at  that  time,  it  is  sufficient  to  note  that 
the  choice  of  the  states  as  shown  in  the  electoral  vote  was  de- 
feated. This  was  accomplished  by  perfectly  legal  and  constitu- 
tional means ;  in  fact,  it  has  been  argued  that  the  House  is  in  no 
way  bound  to  ratify  the  incomplete  choice  of  the  electoral  votes. 
Nevertheless,  the  cry  was  raised  that  the  will  of  the  people  had 
been  defeated.  This  cry  hampered  the  administration  of  Adams 
and  made  the  subsequent  victory  of  Jackson  certain. 

The  presidential  succession  is  only  partially  provided  for  in 
the  Constitution : 

In  case  of  the  removal  of  the  President  from  office,  or  of  his  death,  Presidential 
resignation,  or  inability  to  discharge  the  powers  and  duties  of  the  said  provisional 
office,  the  same  shall  devolve  upon  the  Vice-President,  and  the  Con-  Constitution 
gress  may  by  law  provide  for  the  case  of  removal,  death,  resignation, 
or  inability,  both  of  the  President  and  Vice-President,  declaring^what 
officer  shall  then  act  as  President,  and  such  officer  shall  act  accordingly, 
until  the  disability  be  removed,  or  a  President  shall  be  elected.1 

Under  this  permission.  Congress  in   1792   provided  that  in  Law'of 
case  of  death,  removal,  resignation,  or  disability  of  both  the 
president  and  vice  president  the  president  pro  tempore  of  the 
Senate,  or  in  case  there  should  be  no  such  officer,  the  Speaker 
of  the   House  of  Representatives   should  for  the  time  being 

1  The  Constitution  of  the  United  States,  Article  II,  Sect,  i,  clause  5. 


Law  of  1792 
not  adequate 


Law  of  1886 
provides  for 
succession 
to  cabinet 
officers  in 
order  of 
establish- 
ment of  their 
departments 


Impeachment 


148    THE  GOVERNMENT  OF  THE  UNITED  STATES 

"act  as  President  of  the  United  States  until  the  disability  be 
removed,  or  a  President  elected."  This  made  some  provision, 
but  neither  an  adequate  nor  a  just  one.  What  constitutes  the 
disability  of  a  president?  What  body  is  there  to  judge  of  such 
disability  ?  These  questions  were  not  answered,  nor  have  they 
been  in  subsequent  legislation.  Moreover,  it  is  possible  that 
there  might  be  no  such  officer  as  the  president  pro  tempore  of 
the  Senate  —  in  fact,  such  a  condition  existed  during  the  first 
session  of  Congress  of  1912;  and  the  emergency  might  very 
possibly  arise  in  the  interim  before  the  House  of  Representa- 
tives had  assembled  and  had  chosen  its  Speaker.  Besides,  as 
Madison  pointed  out,  these  officers  would  continue  to  exercise 
their  legislative  functions,  and  thus  the  theory  of  separation  of 
the  executive  and  legislative  departments  would  be  broken. 
The  law  was  unjust,  as  it  would  be  possible  that  either  or  both 
the  president  pro  tempore  of  the  Senate  and  the  Speaker  of 
the  House  might  belong  to  the  opposite  party  from  the  president 
and  vice  president. 

Five  times  the  vice  president  has  succeeded  to  the  presidency.1 
But  until  the  death  of  Garfield,  before  Congress  had  been 
organized,  the  failure  to  provide  adequately  for  the  succession 
was  not  acutely  realized.  In  1886  a  new  law  was  passed  pro- 
viding that  the  succession  should  go  to  4hg^  cabinet  officers  in 
the  order_of  the  establishment  of  their  departments.  The  act 
is  silent  as  to  wh^h^rsuch~officers  sTiouTd  hold  during  the 
unexpired  term  or  until  a  new  election  should  be  ordered.  The 
power  to  decide  this  is  apparently  retained  by  Congress.. 

Although  there  is  nothing  in  the  Constitution  which  defines 
the  disability  of  the  president,  a  method  for  his  removal  is 
provided  by  the  Constitution:  "The  President,  Vice-President, 
and  all  civil  officers  of  the  United  States,  shall  be  removed  from 
office  on  impeachment  for,  and  conviction  of,  treason,  bribery, 
or  other  high  crimes  and  misdemeanors."  2  By  previous  sections 
it  is  provided  that  the  House  has  the  sole  power  to  impeach  any 
officer,  while  the  Senate  has  power  to  try  the  case.  Punishment 
in  cases  of  successful  impeachment  is  removal  from  office  and 

1  Tyler,  1841  ;  Fillmore,  1850;  Johnson,  1865;  Arthur,  1881  ;  and  Roosevelt, 
a  The  Constitution  of  the  United  States,  Article  II,  Se.ct.  iv. 


THE  ELECTION  OF  THE  PRESIDENT  149 

disqualification  from  holding  any  office  of  honor,  trust,  or  profit 
under  the  United  States.  Only  once  has  the  impeachment  of  a 
president  been  attempted,  and  that  unsuccessfully.  In  1869  the 
House  impeached  Andrew  Johnson,  ostensibly  on  the  ground  of  Attempted 
violation  of  the  Tenure  of  Office  Act,  a  measure  in  itself  of 
doubtful  constitutionality,  but  actually  because  Congress  was 
attempting  to  carry  out  policies  in  opposition  to  the  president. 
Although  both  Houses  had  majorities  opposed  to  the  president 
and  could  thus  pass  measures  over  his  veto,  they  were  unable 
to  assure  themselves  that  the  laws  they  passed  would  be  exe- 
cuted to  their  satisfaction  by  the  appointees  of  the  president. 
In  spite  of  the  passions  aroused  at  the  time,  there  was  so  little. 
evidence  that  the  president  was  guilty  of  any  high  crime  or 
misdemeanor,  certainly  not  of  treason,  that  the  impeachment 
proceedings  failed. 

THE  NOMINATION  AND  ELECTION  OF  THE  PRESIDENT 

Thus  far  the  constitutional  and  legal  method  for  the  choice  Development 
of  the  president  has  been  discussed.     But  beyond  the  require- 
ments   of   the   Constitution,   and   even   contrary   to    its    spirit, 


political  parties  have  developed  a  process,  which  until  recently  changes  in 
was   unknown  to  law,   but  which    determines   the   method   by  necessary 
which  the  office  is  filled.    It  is  evident  that  the  framers  of  the 
Constitution  had  no   true  conception  of  political   parties  —  to 
the  statesmen  of  that  day  they  seemed  factions  to  be  avoided. 
Thus,  in  the  method  originally  designed  for  the  election  of  the 
president,  not  only  was  the  action  of  parties  not  provided  for, 
but  the  electoral  college  was  praised  as  a  feature  designed  tor 
diminish  the  effects  of  such  factions.    Nevertheless,  the  third 
administration  showed  a  president  and  vice  president  holding 
diametrically  opposite  views,  and  the  election  of  1800  resulted 
in  a  tie  between  the  Democratic  candidates  for  president  and 
vice  president.    The  Twelfth  Amendment  was  adopted  to  pre-  The  Twelfth 
vent  such  further  confusion,  but  incidentally  it  was  a  recognition 
of  the  power  of  parties  and  resulted  in  the  reduction  of  the 
electoral  college  to  a  mere  cog  in  the  electoral  machinery. 

As  in  all  party  elections,  the  choice  of  the  president  involves 
two  distinct  steps  :    nomination,   or  the   determination  of  the 


Nominations 
for  presi- 
dency : 


(i)  by  Con- 
gressional 
caucus 


[Objections 
to  caucus] 


(a)  by  state 
legislatures 


(3)  by 

national 

conrentions 


1 50  THE  GOVERNMENT  OF  THE  UNITED  STATES 

choice  of  the  party;  and  election,  or  the  attempt  to  make  such 
choice  of  the  party  the  choice  of  the  constituency.  Until  the 
fifth  campaign,  the  election  of  1804,  there  were  no  regular 
party  nominees.  In  that  year,  however,  all  the  Democratic- 
Republican  members  of  Congress  met  in  "caucus"  and  unani- 
mously nominated  Jefferson  and  Clinton  for  president  and  vice 
president  respectively.  This  method  was  continued  until  1824, 
when  its  nominee  suffered  defeat.  Although  the  congressional 
caucus  was  used  for  twenty  years,  its  authority  was  by  no  means 
willingly  acknowledged.  Indeed,  the  system  lost  rather  than 
gained  in  influence,  so  that  in  1820  the  caucus  adjourned  with- 
out making  any  formal  nominations,  —  a  fact,  however,  which 
made  little  difference,  as  Monroe,  the  president,  had  by  precedent 
a  claim  to  be  his  party's  candidate  a  second  time. 

One  of  the  objections  to  the  congressional  caucus  was  not 
that  it  interfered  with  the  constitutional  freedom  of  the  electoral 
college,  —  which  it  did,  —  but  that  it  restricted  the  freedom  of 
popular  choice,  which  was  not  provided  for  by  the  Constitution,  but 
which  hacTbeen  obtained  in  the  majority  of  the  states.  Another 
objection  which  was  urged  was  that  the  nomination  by  the 
party  in  Congress  ignored  the  existence  of  the  party  in  those 
states  in  which  the  party  was  in  the  minority.  Thus  the  choice 
of  candidates  was  made  not  by  representatives  from  the  party 
throughout  the  whole  country  but  by  that  section  of  the  country 
in  which  the  party  was  in  the  majority.  The  convention  system, 
later  adopted,  went  to  the  other  extreme,  and,  as^wHTBT'sriown, 
made  it  possible  that  the  nomination  may  be  determined  by 
delegates  from  states  which  never  cast  an  electoral  vote  for 
the  party's  candidates. 

After  the  fall  of  "King  Caucus"  no  definite  method  was 
generally  adopted  for  several  years.  Jackson  was  indorsed  by 
the  legislature  of  Tennessee  and  by  various  popular  unofficial 
assemblies.  In  1831  assemblies  of  delegates  from  most  of  the 
states  were  held  by  the  National  Republican  and  Anti-Masonic 
parties.  And  by  1840  national  conventions  for  the  purpose  of 
nominating  candidates  and  adopting  resolutions  sotting  forth 
the  policy  of  the  party  were  held  by  all  the  important  parties. 
From  that  date  the  practice  has  become  universal. 


THE  ELECTION  OF  THE  PRESIDENT  151 

But  before  describing  the  operation  of  the  nominating  con-  National 
ventions  attention  should  be  given  to  the  work  of  the  national  mamSpart 
committees  of  the  parties.    These  committees,  at  first  as  self-  machinery 
constituted  bodies,  brought  the  convention  into  existence;  and 
to-day  they  constitute  the  sole  permanent  organization  of  the 
parties.  '  This  can  be  easily  seen  from  studying  the  origin  of  • 
the  Republican  party  and  the  operations  of  its  national  com- 
mittee.  The  Republican  party  was  organized  locally,  and  local  . 
committees  directed  its  activities  within  the  states.    The  chair- 
men of  nine  state  committees  united  in  signing  a  call  for  all 
Republicans  to  an  informal  meeting  "for  the  purpose  of  per-  origin  in 
fecting  a  National  Organization,  and  providing  for  a  National  party™" 
Delegate  Convention  of  the  Republican  party,  at  some  subse- 
quent day,  to  nominate  candidates  for  the  presidency  and  vice 
presidency."  1 

This  informal  gathering  met  in  Pittsburgh  and  chose  an  ex- 
ecutive committee  consisting  of  one  from  each  state  represented 
in  the  convention,  which  in  turn  issued  the  call  for  the  National 
Republican    Convention.    At  this   convention  a  national  com- 
mittee consisting  of  one  delegate  from  each  state  or  territory 
was  appointed  to  act  for  the  next  four  years,  —  a  practice  which 
has  been  followed  ever  since.    In  the  Democratic  party  a  per-  origin  in 
manent    body   known   as   the    national   committee    has    existed  party0" 
since  1848,  while  before  that  date  the  party  conventions  were 
engineered  by  unofficial  and  temporary  committees. 

The  functions  and  duties  of  these  national  committees  are  Powers  and 
many  and  important.    First  in  time,  although  not  in  importance,  national8  ° 
is  the  selection  of  a  city  in  which  to  hold  the  convention.    Vari-  committee 
ous  considerations  are  brought  into  play,  but  the  predominant 
ones  seem  to  be  convenience  and  money.    A  central  city  easily  selection  of 
accessible  is  sought  for  convenience,  but,  as  in  the  case  of  the 
Democratic   choice   of   Denver   in    1908,   the   possibility   of   a 
"  junket  "  sometimes  weighs  more  heavily.    Another  motive  may 
be  to  intensify  the  party  enthusiasm  within  the  section  chosen. 
The  success  of  this,  however,  may  be  doubted.    The  financial 
negotiations  are    carried   on  openly,  and   representatives  from 

1  Jesse  Macy,  Party  Organization  and  Machinery,  p.  67  ;  see  also  P.O.Ray, 
An  Introduction  to  Political  Parties  and  Practical  Politics,  pp.  174-175. 


Call  lor 
selection  of 
delegates 


Method  of 
choice  of 
delegates 
prescribed  by 
Republican 
national 
ttee 


Left  to  state 

committees 

by  pemo- 

cratic 

national 

committee 


1 52    THE  GOVERNMENT  OF  THE  UNITED  STATES 

various  municipal  organizations  bid  against  one  another,  offering 
large  contributions  to  the  campaign  fund.1 

Of  greater  importance  is  the  call  issued  by  the  committee. 
This  document,  nominally  addressed  to  all  the  members  of  the 
party  throughout  the  Union,  is  really  intended  for  the  numerous 
committees  — state,  congressional,  and  local  — which  every  party 
spreads  throughout  the  country.  Besides  designating  the  time 
and  place  of  meeting  of  the  convention,  the  call  provides  for 
the  number  of  delegates  to  be  chosen  and  the  method  of  their 
choice.  The  delegates  may  be  divided  into  two  classes  :  (i)  the 
delegates  at  large,  four  from  each  state  and  territory,  and  two 
at  large  from  Alaska,  Porto  Rico,  Hawaii,  the  Philippines,  and 
the  District  of  Columbia;  and  (2)  the  district  delegates,  two 
from  each  congressional  district  within  each  state.  Thus  each 
state  is  entitled  to  twice  as  many  delegates  as  the  state  has 
electoral  votes.  In  addition,  for  every  delegate  is  chosen  an 
alternate  to  serve  in  case  the  delegate  is  incapacitated. 

Until  1884  neither  of  the  great  parties  prescribed  the  method 
by  which  the  delegates  should  be  chosen.  In  that  year,  how- 
ever, the  call  issued  by  the  Republicans  directed  that  the 
delegates  at  large  should  be  chosen  by  conventions,  and  allowed 
the  delegates  in  the  congressional  districts  to  be  chosen  either 
by  conventions  within  the  districts  or  by  the  district  delegates 
to  the  state  conventions.  In  1888  the  Republican  convention 
adopted  the  rule  that  the  district  delegates  should  be  chosen 
in  the  same  way  as  the  nomination  for  a  member  of  Congress 
was  made  in  that  district.  The  calls  for  the  subsequent  con- 
ventions of  the  Republican  party  contained  similar  directions. 
The  Democratic  party  has  not  been  so  specific  and  has  left  it 
to  the  Democrats  in  each  state  to  determine  the  method  by 
which  the  delegates  shall  be  chosen. 

Until  the  campaign  of  1912  there  was  little  dispute  over  the 
power  of  the  committee  to  enforce  its  regulations.  Before  the 

The  New  York  Times,  January  10,  1912,  stated  that  the  Democratic  Na- 
tional Committee  received  the  following  offers  :  from  Chicago,  to  pay  reasonable 
expenses,  and  a  guarantee  of  $40,000  to  the  campaign  fund ;  from  St.  Louis,  to 
pay  reasonable  expenses  only,  with  pledges  not  to  raise  hotel  rates ;  from  New 
York,  $25,000;  from  Baltimore,  a  certified  check  of  $100,000.  The  committee 
voted  to  hold  the  convention  at  Baltimore. 


THE  ELECTION  OF  THE  PRESIDENT  153 

conventions  of  19/2  met,  however,  eleven  or  twelve  states  conflicts 
adopted  laws  providing,  in  various  ways,  for  the  choice  of  dele- 
gates  by  direct  election  rather  than  by  conventions.1  The  com-  laws°*states 
mittees  of  both  parties,  but  especially  of  the  Republican  party, 
were  then  forced  to  face  the  issue  as  to  whether  their  rules  or 
the  laws  of  the  states  were  to  prevail  in  the  choice  sof  delegates. 
The  committee  of  the  Republican  party  met  in  Washington  in 
December  and  issued  the  call  for  the-  convention.  In  this  call, 
however,  it  was  provided  that  "the  delegates  and  alternates, 
both  from  the  states  at  large  and  from  each  congressional  dis- 
trict, should  be  elected  in  conformity  with  the  laws  of  the  state 
in  which  the  election  occurs,  if  the  state  committee  or  any  such 
congressional  committee  so  direct."2  Thus  the  primary  system 
of  choice  of  delegates  could  be  employed  only  in  those  states 
where  the  state  law  was  mandatory,  not  permissive,  and  then 
only  with  the  approval  of  the  party  committees.  In  the  Demo- 
cratic committee  Bryan  tried  to  carry  a  resolution  providing  for 
the  election  of  all  delegates  by  means  of  the  primaries,  but  he 
was  overruled,  and  the  committee  adopted  a  rule  similar  to  that 
in  the  Republican  call. 

In  ordinary  campaigns  the  question  as  to  the  method  of  the  The  pro- 
choice  of  delegates  would  have  aroused  only  a  passing  interest,  campaign11 
The  preconvention  campaign  of   1912,   however,  was  extraor-  in  I9ia 
dinary  in  both  parties.    In  the  Republican  party  ex-President 
Roosevelt  and  President  Taft  were  contestants  for  the  nomina- 
tion ;    while  in  the  Democratic  party  Speaker  Clark,  Governor 
Wilson,  Governor  Harmon,  and  Representative  Underwood  were 
contesting  for  tjie  nomination.    In  both  parties  the  contestants 
traveled  over  the  country  appealing  directly  to  the  people,  since 
in  at  least  eleven  states  the  choice  of  delegates  depended  entirely 
upon  popular  action  manifested  at  the  primaries  rather  than  upon 
the  skillful  manipulation  of  conventions  by  the  leaders.   Moreover, 
in  eight  states,  at  the  primaries,  a  vote  was  taken  expressing 
the  preference  of  the  voters  for   the   party's   nominee.     The 

1  Pennsylvania,  Wisconsin,  Oklahoma,  South  Dakota,  Oregon,  New  Jersey, 
North    Dakota,    New  York,    Nebraska,   California,    Maryland,    Massachusetts, 
Illinois. — American  Political  Science  Review  (1912),  p.  429 

2  American  Year  Book  (1912),  pp.  1-2. 


Organization 
of  the 
national 
convention 

The  tempo- 
rary roll 

Influence  of 
national 
committee 
illustrated 

in  1912 


I54    THE  GOVERNMENT  OF  THE  UNITED  STATES 

preconvention  campaign  showed  that  Roosevelt  carried  every  state 
where  the  delegates  were  directly  chosen,  except  Massachu- 
setts where  the  ticket  was  divided.  Taft,  on  the  other  hand, 
carried  a  majority  of  those  states  where  the  delegates  were  chosen 
by  conventions.  As  a  result  the  partisans  of  Roosevelt  claimed 
that  where  popular  opinion  had  been  consulted  it  was  overwhelm- 
ingly in  favor  of  their  candidate.  The  Taft  supporters,  on  the 
other  hand,  possessed  an  actual  majority  of  the  delegates  and 
would  be  in  control  of  the  convention  should  it  be  organized  as 
the  previous  ones  had  been.  In  the  Democratic  party  Speaker 
Clark  had  more  delegates,  chosen  both  by  the  primaries  and 
conventions,  than  any  other  candidate,  but  lacked  the  necessary 
number  for  choice.  ^ 

The  next,  and  in  some  respects  the  most  important,  function 
of  the  national  committee  is  the  organization  of  the  convention. 
This  involves  making  a  temporary  roll,  which  in  turn  involves 
passing  upon  the  merits  of  contesting  delegations.  The  impor- 
tance of  this  duty  can  be  appreciated  from  a  review  of  the  or- 
ganization of  the  Republican  convention  of  1912.  The  national 
committee  which  had  been  chosen  by  the  convention  of  1908  to 
elect  President  Taft  was  overwhelmingly  in  favor  of  his  reelection. 
To  this  committee  were  submitted  about  two  hundred  and  fifty- 
four  contests  of  varying  merits.  Of  these,  two  hundred  and 
thirty-five  were  decided  in  favor  of  the  Taft  delegates  and  nine- 
teen in  favor  of  the  Roosevelt  delegates,  giving  a  majority  of  about 
twenty  upon  the  temporary  roll  call  in  favor  of  those  who  sup- 
ported Taft.  The  importance  of  this  temporary  roll  may  be 
appreciated  when  it  is  realized  that  the  delegates  thus  temporarily 
seated  elect  the  committee  on  credentials  and  have  the  final 
authority  to  settle  all  contests  and  thus  to  determine  the  per- 
manent membership  of  the  convention.  Rarely  does  the  majority 
of  the  convention  reverse  the  ruling  of  the  national  committee, 
for  in  so  doing  they  would  diminish  their  own  power  and  exhibit 
a  self-denial  seldom  found  in  politics.  The  Republican  conven- 
tion of  1912  was  no  exception.  The  convention  adopted  the 
report  of  the  committee  on  credentials  which  sustained  the  na- 
tional committee  in  every  instance,  whereupon  the  supporters  of 
Roosevelt  refused  to  take  further  part  in  the  proceedings. 


THE  ELECTION  OF  THE  PRESIDENT  155 

One  other  function  is  performed  by  the  national  committee  at  selection  of 
the  convention  ;  namely,  the  selection  of  the  temporary  chairman  chSnnaZ 
to  preside  over  the  convention  until  its  permanent  organization 
is  completed.  Under  ordinary  circumstances  the  nominee  of  the 
committee  is  accepted  by  the  convention.  In  1884,  however,  the 
Republican  convention  rejected  the  nominee  of  the  committee, 
although  following  its  advice  in  other  respects.  In  1896  the 
Democratic  convention  refused  to  elect  Senator  Hill,  the  choice 
of  the  national  committee  and  the  leader  of  the  "  Gold  Demo- 
crats," and  chose  Senator  Daniels  of  Virginia,  who  was  one  of 
the  leaders  of  the  "silver  wing"  of  the  party.  In  like  manner, 
in  1912,  the  more  conservative  politicians  upon  the  Democratic 
national  committee  nominated  Judge  Parker  as  temporary  chair- 
man and,  in  spite  of  the  opposition  of  Bryan,  elected  him, 
although  the  convention  ultimately  followed  Bryan's  advice  in  / 
most  other  respects. 

The  temporary  chairman  in  his  speech  of  acceptance  sounds  Duties  and 
what  is   known   as  the  "keynote"  of  the  convention,  and,  as  tnTtempo- 
the   selection  of  the   national   committee,   although   chosen  by  ^chair" 
delegates  temporarily  seated,   is  able  by  his  rulings    to  carry 
out  the  plan  of  the  committee.    The  committee  makes  up  the  "Keynote" 
temporary  roll  of  the  convention,  which  chooses  the  temporary  SI*eec 
chairman  and  the  committee  on  credentials.    This  committee  on  Rulings 
credentials  presents  a  report  which  forms  the  basis  of  the  con- 
vention when  finally  organized.    In  arriving  at  this  final  organiza- 
tion there  are  numerous  instances  where  a  presiding  officer  in 
sympathy  with  the  national  committee  can  be  of  the  greatest 
assistance.    To  illustrate  :    As  has  been  said,  there  were  a  large  illustrated 
number  of  contesting  delegations  at  the  Republican  convention  convention*11 
of  1912,  many  of  whom  were  disposed  of  by  the  unanimous  vote  of  IQI2 
of  the  national  committee.     There  were,  however;  seventy-two 
delegates  put  upon  the  temporary  roll  by  the  vote  of  those  in 
the  committee  who  favored  Taft.     Since  the  Taft  majority  in 
the  convention  could  be  only  about  twenty,  counting  the  seventy- 
two  delegates  who  had  been  seated  by  the  vote  of  the  national 
committee,  it  was  of  vital  importance  that  these  seventy-two  con-    • 
tests  be  decided  in  favor  of  Taft.    These  delegates  were  on  the 
temporary  roll,  and  they  aided  in  the  election  of  Senator  Root 


Difficulties 
arise  from 
fact  that  the 
national  com- 
mittee may 
represent 
past  rather 
than  present 
political 
conditions 


Composition 
of  national 
convention 


Delegates 

from 

territories 


156    THE  GOVERNMENT  OF  THE  UNITED  STATES 

as  temporary  chairman,  and  they  helped  accept  the  report  of 
the  committee  on  credentials  seating  themselves.  It  was  urged 
that  none  of  the  delegates  whose  seats  were  contested  be  allowed 
to  vote,  but  the  chairman  ruled  that  only  those  whose  seats  were 
the  subject  of  the  particular  vote  should  be  excluded.  As  a  result 
the  seventy-two  contested  delegates  in  turn  voted  to  seat  one 
another.  The  ruling  of  the  temporary  chairman  has  been  much 
criticized,  yet  it  was  in  accord  with  the  practice  of  previous  conven- 
tions. It  is  difficult,  moreover,  to  devise  a  plan  by  which  either 
the  contesting  delegations  are  not  temporarily  seated  or  to  avoid 
the  possibility  of  having  no  delegations  seated  at  all,  should  some 
unscrupulous  leader  stage  a  sufficient  number  of  contests.  This 
charge  was  freely  made  against  the  Roosevelt  supporters,  and 
although  there  is  little  evidence  to  prove  it,  the  number  of  con- 
tests which  even  his  spokesmen  refused  to  sustain  in  the  national 
committee  is  suspicious.  The  power  of  the  national  committee 
in  the  convention  may  be  liable  to  misuse,  but  it  seems  that  such 
power  must  be  placed  somewhere.  After  all,  the  difficulty  is  not 
so  much  with  the  power  of  the  committee  as  with  the  fact  that 
the  committee  is  the  product  of  the  political  conditions  of  four 
years  previous.  Moreover,  when  the  president  is  himself  a  can- 
didate for  reelection  or  actively  pledged  to  the  support  of  another 
candidate,  his  wishes  with  the  committee  are  apt  to  assume  the 
force  of  commands.  Some  of  the  direct  primary  laws  provide 
that  the  committeemen  be  elected  along  with  delegates  directly  by 
the  voters.  This  would  seem  to  solve  the  difficulty  presented  at 
Chicago  in  19 1 2,  and  to  those  who  enthusiastically  advocate  the  ex- 
tension of  the  direct  primary  system  the  suggestion  has  great  merit. 

A  convention  consists  of  twice  as  many  delegates  from  each 
state  as  the  state  has  representatives  and  senators  in  Congress. 
In  addition,  delegates  are  chosen  for  the  territories,  the  District 
of  Columbia,  and  the  insular  possessions.  Hence  the  actual  mem- 
bership of  a  convention  numbers  about  eleven  hundred.  Moreover, 
for  each  delegate  an  alternate  is  chosen,  who,  although  he  has 
little  power,  adds  to  the  number  who  attend  the  convention. 

Although  the  inhabitants  of  the  territories  do  not  vote  for 
presidential  electors,  nevertheless  both  parties  believe  it  to 
their  advantage  to  accustom  them  to  organized  party  action.  In 


THE  ELECTION  OF  THE  PRESIDENT 


157 


addition,  the  convention  seems  more  truly  a  national  assembly  if 
delegates  from  all  parts  of  the  country  are  'present.  There  are, 
however,  other  reasons  more  closely  connected  with  the  practi- 
cal side  of  political  manipulation  which  are  probably  operative. 
In  communities  where  the  population  is  small  or  where  the 
party  strength  is  slight  there  is  more  opportunity  for  an  experi- 
enced politician  to  exercise  greater  control  than  where  the  party 
vote  is  numerous  or  the  population  is-  large.  The  delegates  from 
the  territories  and  from  the  insular  possessions  are  not  numerous 
enough  to  influence  the  result  to  a  very  marked  degree ;  but  fre- 
quently through  the  use  of  their  proxies  they  furnish  a  seat  on 
the  national  committee  for  some  experienced  leader.  Far  other- 
wise is  the  effect  of  the  delegates  from  the  South  in  Republican 
conventions,  and  from  some  of  the  Northern  states  in  the  Demo- 
cratic conventions.  As  matters  stood  it  was  possible  for  the  dele- 
gates from  the  Southern  states,  who  did  not  furnish  a  single 
Republican  elector,  to  hold  the  balance  of  power  and  thus  de- 
termine the  organization  of  the  convention  and  the  nomination 
of  the  Republican  candidate.1  In  like  manner,  in  the  Democratic 

1  The  following  table,  taken  from  the  Outlook,  June  29,  1912,  shows  the 
source  of  the  vote  on  the  question  of  the  admission  of  two  Taft  delegates 
from  California : 


Delegates 
from  states 
where  party 
is  weak  give 
opportunity 
for  political 
manipulation 


TAFT 
FOR  ADMISSION 

ROOSEVELT 
AGAINST  ADMISSION 

Southern  Democratic  States 

214 

at 

Western  Democratic  States 

16 

20 

Eastern  Democratic  States      

14 

Western  Republican  States     

142 

268 

Eastern  Republican  States 

128 

I4O 

Territories     .... 

8 

6 

542 

529 

Nearly  one  half  the  Taft  vote  came  from  states  which  could  not  be  expected  to 
cast  a  Republican  electoral  vote. 

"  He  had  the  solid  South,  which  has,  one  may  say,  no  voice  or  power  in  the 
choice  of  a  Republican  president,  a  few  scattered  votes  from  nominally  Demo- 
cratic states  not  in  the  South,  a  comparatively  large  number  of  votes  from  those 
Eastern  states  which  are  naturally  ultra-conservative.  .  .  ." 

Without  entering  into  the  merits  of  the  admission  of  the  delegates  from 
California,  this  table  illustrates  the  power  of  the  national  committee  or  the 
permanent  organization  of  the  party  in  those  communities  where  either  the 
population  or  the  voting  strength  is  small. 


Republican 
practice  in 


1  58  THE  GOVERNMENT  OF  THE  UNITED  STATES 

convention  of  1904,  it  was  asserted  that  the  sixty-eight  votes  of 
Pennsylvania,  a  state  which  has  not  cast  a  Democratic  electoral 
vote  since  1856,  defeated  Bryan  in  his  attempt  to  control  the 
convention,  and  determined  the  nomination  of  Judge  Parker. 
'  From  1864  the  subject  of  reapportioning  the  delegates  has 
been  Discussed  in  at  least  five  Republican  conventions.  Even  at 
the  first  convention,  in  1856,  it  was  argued  that  the  delegates 
from  the  South  should  not  be  admitted,  but  the  desire  to  avoid 
the  charge  of  sectionalism  and  to  make  a  national  appeal  pre- 
vailed.1 From  that  date  various  proposals  have  been  made  to 
remedy  this  condition,  but  none  was  adopted  until  the  conven- 
tion of  1916,  where  a  new  rule  of  apportionment  was  applied. 
In  this  convention  each  state  had  four  delegates  at  large. 
There  were  two  additional  delegates  at  large  for  each  member 
of  Congress  elected  at  large,  and  one  delegate  for  each  con- 
gressional district.  In  addition,  there  was  a  delegate  from  each 
congressional  district  in  which  the  vote  for  any  Republican 
elector  in  1908  or  for  the  Republican  nominee  for  Congress 
in  1914  should  have  been  not  less  than  seven  thousand.  By 
this  method  the  convention  was  reduced  by  eighty-nine  dele- 
gates. New  York  lost  two,  but  none  of  the  other  states  north 
of  the  Ohio  were  affected.  This  plan  was  in  no  sense  a  radical 
one  and  had,  as  far  as  can  be  judged,  very  little  effect  upon  the 
power  of  the  committee  or  the  ease  with  which  the  convention 
of  1916  was  managed. 

After  the  permanent  organization  of  the  convention  is  corn- 
pleted  the  committee  on  resolutions  offers  its  report.     These 
The  platform  resolutions,  known  as  the  platform,  are  supposed  to  embody  the 
coramrttainon~  principles  for  which  the  party  stands;  actually  they  are  combi- 
nations of  party  policy  and  generalities  designed  to  attract  sup- 
port.   Thus   the  platform   of  the   Progressive   party  in    1912 
discussed  questions  and  issues  which  had  no  place  in  a  national 
campaign,  but  which  could  be  met  solely  by  state  action.    In 
general  the  adoption  of  the  platform  is  a  foregone  conclusion 
and  is  merely  a  formal  action.    One  remarkable  exception  was 

1  For  details  of  the  various  proposals  see  an  excellent  article  by  Victor  Rose- 
water,  '*  Republican  Convention  Reapportionment,"  in  Political  Science  Quarterly  ', 
Vol.  XXVIII,  pp.  610-626. 


The  com- 
resolutions 


THE  ELECTION  OF  THE  PRESIDENT  159 

furnished  in  the  Republican  convention  of  1  896  :  the  adoption 
of  the  declaration  for  the  gold  standard  caused  thirty-four  dele- 
gates to  secede.  In  the  Democratic  convention  of  the  same  year 
the  debate  upon  the  platform  gave  Bryan  the  opportunity  to 
deliver  his  famous  "  Cross  of  Gold  "  speech,  which  made  him 
three  times  the  candidate  of  his  party. 

Upon  the  third  or  fourth  day  of  the  convention  the  chairman  Nominations 
announces  that  nominations  are  in  order,  and  the  secretary  calls 
the  roll  of  the  states,  beginning  with  Alabama.    Usually  a  state 
haying  no  candidate  will  yield  to  the  state  having  one.    Thus 
in   the    Democratic   convention    of    1900   Alabama   yielded   to 
Nebraska  in  order  that  Bryan  might  be  put  in  nomination  by 
his  native  state.    In   "  The  American   Commonwealth  "    Lord 
Bryce  makes   the  classification   of   candidates  as   Favorites  —  Favorites 
candidates  of  national  popularity  ;    Favorite  Sons  —  candidates  Favorite  sons 
indorsed  by  their  native  states  ;    Dark   Horses  —  unsuspected  Dark  Horses 
candidates  who  are  ready  to  take  advantage  of  any  compro- 
mise or  wave  of  enthusiasm.    These  terms  have  become  classic. 
Yet  even   before  the   day  of   the   direct   primary,    the   differ- 
ence between  a  Favorite  and  a   Favorite  Son  was  not  always 
clearly  marked.     Now,   with   the  preconvention   campaign  for 
delegates,  Favorite  Sons  with  enough  votes  to  become  factors 
in  the  convention  would  almost  necessarily  have  the  prominence 
of  Favorites.    In  like  manner  the  direct  primary  has  reduced  The  effect  of 
the  possibility  of  a  Dark  Horse.    Delegates  elected  by  popular 


election    pledged    to   support   a    particular,  candidate   are    less 

likely  to  be  shifted  by  compromises  or  swayed  by  enthusiasm  (i)  on  Dark 

than  those  who  are  not  so  immediately  chosen  by  the  people. 

The  question  of  how  far  the  delegates  should  continue  to  vote 

for  the  candidates  for  whom  they  are  pledged  has  never  been  (2)  on  in- 

settled,  nor  is  there  any  likelihood  that  it  ever  will  be  ;  and  each  delegates 

delegate  must  be  the  judge  of  whether  he  has  fulfilled   the 

spirit  of  his  instructions.    His  vote,  whether  in  accord  with  or 

opposed  to  his  instructions,  is  legal  and  cannot  be  questioned. 

It  may  be  expected,  however,  that  the  delegates  directly  chosen 

will  exhibit  more  stubbornness  than  those  picked  by  state  con- 

ventions.   Such  was  perhaps  the  case  in  the  Democratic  conven- 

tion  of    1912,    for  the   nomination   of   President  Wilson  was 


Convention 
easily  moved 


"Stampede" 


Demonstra- 
tions 


Demonstra- 
tions usually 
planned  and 
artificial 


1 60  THE  GOVERNMENT  OF  THE  UNITED  STATES 

brought  about  only  on  the  forty-sixth  ballot,  so  persistent  were 
the  Clark  delegates  in  observing  their  instructions. 

An  assembly  of  nearly  two  thousand  delegates  and  alternates, 
meeting  in  the  presence  of  ten  or  twelve  thousand  spectators, 
offers  a  dangerous  temptation  to  an  orator.  Appeals  ^to  senti- 
ment rather  than  to  reason,  attempts  to  rouse  enthusiasm,  which 
may  easily  become  uncontrolled  and  degenerate  into  a  "  stampede," 
are  characteristic  of  nominating  speeches.  Each  speaker  attempts 
so  to  stir  the  convention,  and  in  this  he  is  assisted  by  the 
delegates  pledged  to  his  candidate.  At  the  mention  of  the 
candidate's  name  —  usually  at  the  climax  of  the  speech  - 
the  delegation  supporting  him  attempts  to  make  a  "  demonstra- 
tion." This  may  take  the  form  of  prolonged  cheering  lasting 
sometimes  nearly  an  hour,  or  a  procession  around  the  conven- 
tion hall,  calling  upon  other  delegations  to  join.1 

In  all  this  the  spectators  aid  and  abet  the  turmoil ;  and 
oftentimes  incite  it,  sometimes  as  part  of  a  plan  prepared  by 
the  manager  of  one  of  the  candidates.  For  example,  a  carefully 
planned  scheme  for  a  stampede  failed  in  the  Republican  con- 
vention of  1892.  At  the  end  of  the  speech  seconding  the 
nomination  of  Blaine,  a  woman  in  the  gallery  began  opening 
and  shutting  a  white  parasol  with  rhythmic  precision ;  section 
after  section  of  the  crowd  caught  the  spirit,  and  the  delegates 
on  the  floor  and  the  spectators  in  the  galleries  rose  to  their 
feet  and  joined  in  the  demonstration.  As  long  as  the  woman 
in  the  gallery  led  the  cheering  the  enthusiasm  continued  to 
increase,  and  the  Harrison  leaders  began  to  doubt  their  ability 
to  control  the  convention.  Unfortunately,  however,  for  the 

1  The  Underwood  delegates  "  shouted  and  sang,  marched  and  blew  horns. 
They  stamped  and  clapped  their  hands.  .  .  .  They  did  all  this  for  the  purpose 
of  impressing  the  convention  with  the  charm  of  their  candidate  and  his  power 
of  making  his  friends  eager  to  serve  him  and  advance  his  interests. 

"  After  so  much  noise  had  been  made  over  Underwood  . . .  the  candidates  with 
more  delegates  .  .  .  had  to  show  how  little  twenty  minutes  of  uproar  meant  when 
weighed  in  their  scale.  So  the  Clark  partisans  did* for  an  hour  and  five  minutes 
what  the  smaller  body  of  Underwood  admirers  had  done  for  a  third  of  that 
period.  .  .  . 

"  And  then  it  was  up  to  Governor  Wilson's  followers  to  beat  the  Clark  out- 
break. They  did  it.  The  Wilson  demonstration  was  kept  going  somehow  for 
an  hour  and  fifteen  minutes.  .  .  ."—  Outlook,  July  13,  1912,  quoting  from  the 
Cleveland  Leader 


THE  ELECTION  OF  THE  PRESIDENT  161 

Elaine  men,  a  mistake  in  the  signals  occurred  and  the  woman 
left  her  commanding  position  in  the  gallery  to  lead  a  procession 
around  the  floor.  This  was  enough  to  break  the  spell.  Order 
was  restored,  and  the  convention  proceeded  along  the  line  laid 
out  for  it  by  the  national  committee.1 

After  the  nomination  of  the  candidates  the  balloting  begins.  Balloting  by 
The  secretary  calls  the  roll  of  the  states  in  alphabetical  order,  s 
and  the  chairman  of  the  delegations  announces  the  vote  which 
•is  recorded  by  the  clerks.    In  the  Republican  convention  each  Republican 
delegate  may  have  his  vote  recorded  as  he  personally  sees  fit.  aifowslndi- 
The  rules  of  the  Democratic  party  allow  the  state  delegations  Vldualvote 
to  determine  whether  they  shall  vote  as  a  unit  or  not ;  and  the 
majority  in  each  delegatipn  determines  to  whom  its  entire  vote  Democratic 
shall  be  given.    This  method  of  voting,   known  as  the  "  unit 
rule,"  was  formerly  followed  by  both  parties.    The  Republican 
party,  however,  abandoned  it  in  1876  and  1880  ;  but  it  is  still 
observed  in  the  Democratic  conventions.     From  the  point  of 
view  of  the  leaders  the  unit  rule  has  much  to  commend  it,  since 
it  enables  the  leaderjof  the^majority  of  the  delegates  to  deliver 
the  full  vote  of  the  delegation,  a  most  desirable  thing  in  a  com- 
promise or  trade.    Here  again  the  action  of  the  direct  primaries 
is  seen  to  conflict  with  the  rules  of  at  least  the  Democratic  party. 
Delegates  elected  and  instructed  by  popular  vote  to  support  a 
particular  candidate  are  less  willing  to  operate  under  this  rule 
since  it  may  deprive  their  candidate  of  their  votes.2 

In  case  the  delegate  is  not  present  his  alternate  votes  for  him.  votes  of 
Often  delegates  withdraw  or  absent  themselves  in  order*  to  give  ?n  R<Subiican 
their  alternates  the  little  honor  which  may  be  derived  from  such  ™ 
voting.     In  the  Republican  convention  of  1912  Senator  Root  . 
ruled  that  where  a  delegate  refused  to  vote,  the  vote  of  the 
alternate  should  be  recorded.    As  this  ruling  was  not  applied  to 
the  delegates  from  California  who  refused  to  vote,  but  only  to 
the  two  Roosevelt  delegates  at  large  from  Massachusetts,  who 
had  Taft  alternates,   it  was   regarded  as  a  high-handed  bit  of 

1  Harpers  Weekly,  Vol.  LVI,  No.  2897,  p.  n. 

2  The   Democratic  rule  was  so  modified  in   1912  that  the  rule  should  be 
enforced  "  except  in  such  states  as  have  by  mandatory  statutes  provided  for  the 
nomination  and  election  of  delegates  to  national  conventions  in  congressional 
districts." 


convention 
1912 


Nomination 
in  Republi- 
can conven- 
tion by 
majority  ;  in 
Democratic, 
by  two 
thirds 


Little  inter- 
est in  nomi- 
nation of 
vice 
president 


1 62    THE  GOVERNMENT  OF  THE  UNITED  STATES 

partisanship.1  From  whatever  point  of  view  it  is  regarded  it  is 
certainly  an  instructive  example  of  the  power  of  the  chairman. 

In 'the  Republican  convention  the  candidate  receiving  a  ma- 
jority of  the  votes  is  declared  nominated.  The  Democratic  party, 
however,  since  1832,  has  adhered  to  what  is  known  as  the  "  two- 
thirds  "  rule,  which  requires  the  candidate  to  receive  the  votes  of 
at  least  two  thirds  of  the  delegates.  The  rule  was  avowedly  intro- 
duced to  make  the  nomination  of  the  candidate  more  impressive, 
and  to  insure  the  nomination  of  a  candidate  upon  whom  the 
greater  part  of  the  delegates  could  agree.  It  has  been  charged, 
however,  that  the  real  reason  was  to  prevent  the  nomination  of  a 
candidate  acceptable  to  the  majority,  and  that  it  has  been  utilized 
to  extort  compromises.  An  examination  of  the  procedure  of  the 
conventions  will  not  bear  this  out.  Omitting  the  convention  of 
1 860,  which  was  exceptional,  in  only  two  cases  has  the  candidate, 
who  upon  any  ballot  had  a  majority,  failed  to  obtain  the  nomi- 
nation. In  1844  Van  Buren  obtained  twenty-six  more  than  a 
majority  on  the  first  ballot,  but  on  the  ninth  ballot  a  "  stampede  " 
led  to  the  nomination  of  Polk.  In  1912  Speaker  Clark  on  the 
tenth  ballot  had  an  actual  majority  of  the  votes  of  the  convention, 
but  lacked  one  hundred  and  eighty-two  of  the  necessary  two 
thirds.  On  the  twenty-eighth  ballot  Wilson  obtained  the  lead  but 
not  the  necessary  two  thirds,  until  on  the  forty-sixth,  when  Clark 
gave  up  the  fight,  and  Wilson  received  nine  hundred  and  ninety 
out  of  a  possible  one  thousand  and  ninety-two. 

After  the  nomination  of  the  president  the  interest  in  the  con- 
vention*wanes.  Candidates  for  vice  president  are  nominated,  but 
little  interest  is  displayed  in  their  choice,  and  less  care  given  to 
their  qualifications.  Sometimes  the  vice  presidency  is  awarded  to 
a  disappointed  candidate  for  the  presidency  ;  more  often  someone 
is  chosen  from  a  doubtful  state  or  from  a  group  of  states  which  the 
party  wishes  to  conciliate.  Sometimes  it  has  been  asserted  that 
the  vice  president  was  chosen  on  account  of  his  wealth,  sometimes, 
as  in  the  case  of  Roosevelt  in  1900,  to  add  a  man  with  a  "  war 
record  "  and  great  popularity  to  the  ticket.  But  whatever  motives 
are  operative,  the  office  is  lightly  esteemed  and  carelessly  bestowed. 

1  See  A.  B.  Hart,  "  Two  for  His  Heels,  A  Study  in  Convention  Ethics," 
in  the  Outlook,  August  10,  1912. 


THE  ELECTION  OF  THE  PRESIDENT  163 

For  example,  in  1904,  at  one  o'clock  on  Sunday  morning,  the 
Democrats  nominated  H.  G.  Davis  of  West  Virginia  for  vice 
president.  Mr.  Davis  had  been  a  United  States  senator,  was  a 
successful  business  man  and  millionaire,  but  was  over  eighty  years 
old.  There  was  little  talk  of  superannuation  and  little  general 
discussion  of  fitness.  As  one  of  the  delegates  wrote  :  "  Word 
was  passed  around  that  Davis  was  the  man  to  be  voted  for."1 

The  convention  performs  one  other  duty  before  it  adjourns.  National 
At  some  stage  in  its  proceedings  it  selects  a  national  committee 
to  serve  for  the  next  four^y  ears.  In  practice  the  delegations  from 
the  different  states  and  territories  each  nominate  a  member  and  delegations 
the  convention  ratifies  their  choice.  This  national  committee 
is  the  permanent  element  of  the  party  organization.  Theoret- 
ically, the  convention  is  the  final  court  of  appeal,  but  from  its  tem- 
porary character,  the  shortness  of  its  sessions,  and  the  inexperience 
of  most  of  its  members  its  actual  authority  is  wielded,  as  has  been 
seen,  by  the  committee  or  by  its  agent,  the  chairman.  This  fact, 
long  appreciated  by  politicians,  was  not  realized  in  full  by  the 
public  until  recent  years. 

With  the  adjournment  of  the  convention  and  the  commence- 
ment of  the  campaign  the  committee  assumes  active,  open,  and 
important  duties.  The  size  of  the  committee  precludes  any  gen- 
eral action  or  deliberation,  and  the  decisions  are  made  and  the 
work  directed  by  the  chairman. 

The  chairman  of  the  national  committee  need  not  have  been  chairman 
one  of  the  members  elected  by  the  convention,  for  usually  he  is  committee 


chosen  by  the  committee  at  the  suggestion  of  the  candidate.  In 
some  of  the  recent  preconvention  campaigns  the  contest  has  candidate 
developed  a  leader  bound  to  the  candidate  by  close  personal  ties 
or  to  whom  the  candidate  is  under  deep  obligations.  Such  a 
man  is  frequently  chosen  to  head  the  national  committee.  Thus 
Senator  Hanna,  who  for  three  years  before  the  convention 
of  1896  began  to  work  for  the  nomination  of  McKinley,  was 
made  chairman  in  both  of  the  McKinley  campaigns.  President 
Roosevelt  chose  for  himself  and  for  his  successor,  Taft,  members 
of  his  official  family  to  conduct  the  two  successful  campaigns. 

1  A.  P.  Dennis,  "  Our  National  Convention,"  in  Political  Science  Quarterly, 
June,  1905,  pp.  185-202. 


Power  and 
influence 
of  chairman 
his  obliga- 
tions and 
resources 


Power  of 
chairman 
illustrated 
by  career 
of  Senator 
Hanna 


Campaign 
funds 


Treasurer  of 
the  national 
committee 


164    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Considerable  criticism,  however,  arose  over  these  appointments. 
It  was  urged  that  Mr.  Cortelyou,  as  head  of  the  Bureau  of  Cor- 
porations, had  had  unusual  opportunities  to  gain  information  of 
value  in  the  campaign  and  that,  as  Secretary  of  the  Treasury,  he 
had  power  to  repay  certain  kinds  of  obligations.  Although  there 
was  never  any  evidence  produced  that  any  such  thing  actually 
took  place,  public  opinion  was  not  indifferent  and  became  actu- 
ally hostile  to  Mr.  Hitchcock,  the  successful  manager  of  Taft's 
first  campaign,  who  in  his  position  as.  Postmaster-General  was 
called  the  "  office  broker."  Since  the  remarkable  career  of  Senator 
Hanna  more  public  attention  has  been  centered  upon  the  chair- 
man and  his  power.1  In  his  case  there  was  a  fortunate  union  of 
successful  campaign  manager  with  many  obligations  to  fulfill,  a 
personal  friend  in  whom  the  greatest  confidence  was  placed,  a 
United  States  senator  of  growing  influence,  with  a  war  president, 
strongly  partisan,  with  numerous  appointments  to  make.  It  is  not 
to  be  wondered  that  almost  innumerable  office  seekers  early  sought 
the  indorsement  of  the  chairman,  senator,  and  personal  friend  of 
the  president.  It  is  obvious  that  Senator  Hanna's  power  could 
have  been  very  easily  used  against  the  president,  a  condition 
which  was  revealed  when  Roosevelt  succeeded  McKinley. 

In  addition  to  the  potential  power  of  the  distribution  of  the 
patronage,  the  chairman  of  the  national  committee  has  the  col- 
lecting and  spending  of  huge  sums  of  money.  It  is  reported 
that  for  the  Republican  campaign  of  1896  over  seven  million 
dollars  was  raised.  The  collection  of  this  money  naturally  in- 
volves a  certain  implied  obligation  in  determining  the  policy  of 
the  party,  and  frequently  the  chairman  implicitly  or  explicitly 
pledges  his  candidate  to  a  certain  line  of  action.  But  whether 
this  is  actually  done  or  not,  an  obligation  is  created  which  the 
chairman  seeks  to  have  the  president  discharge. 

The  only  other  important  official  of  the  national  committee 
is  the  treasurer.  Frequently  he  is  a  man  of  great  reputation,  in 
close  touch  with  many  of  the  financial  interests  of  the  country. 
In  such  cases  the  treasurer  is  more  apt  to  have  more  to  do 
with  the  actual  raising  of  the  money  than  the  chairman. 


1  See  Ogden,  M  The  New  Power  of  the  National  Committee,"  in  Atlantic 
Monthly^  January,  1902. 


THE  -ELECTION  OF  THE  PRESIDENT  165 

The  other  members  of  the  national  committee  are  busy  in  National 
their  respective  states.    In  every  state  the  national  committee  SSTcSve 
cooperates  with  the  local  state  committee  to  bring  about  not  st/teesspe°tive 
merely  the  election  of  the  president  but  of  all  the  candidates  of 
the  party  for  state  and  national  offices.    The  member  of  the 
national  committee  from  the  state  is  usually  the  agent  in  such 
cooperation.    It  is  his  duty  to  see  that  the  committee  is  har- 
monious, that  the  party  is  united,  that  local  quarrels  are  patched 
up.    In  this  capacity  he  has  great  power.    Speaking  for  the 
national  organization,  he  is  listened  to,  and  in  influencing  the 
distribution  of  campaign  funds  he  is  obeyed.    In  doubtful  states, 
however,   the   chairman  of   the    national    committee    may  con- 
centrate his  efforts  and  direct  the  campaign  himself. 

A  presidential  campaign  differs  from  state  campaigns  chiefly  Presidential 
in  that  it  is  nation-wide  and  arouses  national  interest  and  ex-  SkTstate 
citement.    The  methods  employed  differ  only  in  degree  from  camPai«ns 
those  employed  in  state  campaigns,  and  since  the  presidential 
electors  are  chosen  by  the  states  under  state  laws,  the  same  rules 
and  procedure  apply  to  a  presidential  campaign  and  election  as 
to  state  elections.    One  or  two  exceptions  and  interesting  dif- 
ferences, however,  may  be  noted. 

Following  the  lead  of  various  states,    Congress  has  passed  Federal 
laws    governing   campaign    contributions.    In    1907   all    contri-  erningOV 
butions  by  United  States  corporations  were  forbidden,  and  con-  contributions 
tributions  from  corporations  chartered  in  the  several  states  were 
forbidden  to  campaigns  of  federal  officers.    In  1910  candidates 
were  required  to  publish  their  campaign  contributions  and  ex- 
penses, and  in  1912  this  publication  was  to  precede  the  election 
and  to  cover  all  receipts  and   expenses  connected  not  merely 
with  the  campaign  for  election  but  also  with  the  preliminary 
contest  for  the  nomination. 

The  election  in  November,  popularly  called  the  election  of  presidential 
the  president,  is  really  the  election  of  presidential  electors.  As 
has  been  seen,  these  are  chosen  according  to  the  laws  of  the 
various  states,  which  now  uniformly  provide  for  a  popular  vote 
for  the  electors  upon  a  general  ticket.  In  1912  the  laws  govern- 
ing the  primaries  held  for  the  nomination  of  electors  came  into 
conflict  with  the  practice  of  the  Republican  party.  In  previous 


Conflicts 
between 
state  law 
and  party 
practice 


Courts  reluc- 
tant to 
interfere  in 
political 
disputes 


Case  of 

California 


Case  of 


1 66  THE  GOVERNMENT  OF  THE  UNITED  STATES 

campaigns  the  electors  had  been  placed  upon  the  ticket  as  the 
result  of  the  action  of  party  conventions  held  within  the  various 
states,  summoned  and  managed  by  the  state  leaders  of  the  party. 
In  both  California  and  Kansas  the  great  majority  of  the  en- 
rolled Republicans  were  enthusiastic  supporters  of  Roosevelt. 
The  question  arose  whether  these  Roosevelt  men  should  be  al- 
lowed to  place  the  names  of  electors  pledged  to  vote  for  Roose- 
velt upon  the  Republican  ticket.  In  California  the  Progressives 
had  a  majority  of  over  ninety  per  cent  of  the  Republican  con- 
vention and  nominated  thirteen  electors  pledged  to  vote  for 
Roosevelt.  The  Taft  delegates,  ten  per  cent  of  the  convention, 
withdrew  and  nominated  a  full  ticket  of  electors  pledged  to  vote 
for  Taft,  and  applied  to  the  courts  for  a  mandamus  to  replace 
the  Roosevelt  electors  on  the  ticket  with  those  they  had  chosen. 
The  Chief  Justice  of  the  Supreme  Court  of  California  refused 
to  interfere,  and,  in  his  opinion,  said  of  the  action  of  the 
Progressives : 

They  have  registered  as  Republicans.  .  . .  They  remained  according  to 
the  test  prescribed  as  members  of  the  Republican  party.  They  elected 
their  delegates  to  the  convention,  and  the  convention  was  regularly  held, 
and  acted  according  to  its  notions  of  political  expediency  and  good 
faith.  And  the  courts  cannot  inquire  into  it ;  we  cannot  decide  political 
questions.  We  can  only  decide  what  is  legal  under  the  state  law.1 

The  result  of  this  decision  was  that  the  electors  for  the 
candidates  nominated  by  the  Republican  convention  were  barred 
from  the  Republican  ticket.  Or,  in  other  words,  as  a  result  of 
the  primaries,  legally  nominated  Republican  electors  were  Pro- 
gressives and  had  the  title  of  Republicans  on  the  state  ticket, 
while  the  Republicans  who  supported  Taft  were  forced  to  seek 
other  methods  and  designations  for  their  candidate. 

A   somewhat   similar  state   of  things   occurred   in   Kansas. 
The  Taft  men  applied  to  Justices  Pitney  and  Van  Devanter  for 
a  writ  of  error  against  the  judgment  of  the  state  court,  whicl 
had  upheld  the   Progressive  contentions,   and   asked   that  th< 
Roosevelt  men  be  removed  from  the  Republican  primary  ballot 
The  justices  refused  so  to  do,  saying : 

1  American  Year  Book  (1912),  p.  26. 


THE  ELECTION  OF  THE  PRESIDENT  167 

But  as  the  courts  are  reluctant  to  interfere  with  the  ordinary  course 
of  elections,  whether  primary  or  otherwise,  as  the  rights  asserted  are 
not  clear,  but  doubtful,  and  as  the  injury  and  public  inconvenience 
which  would  result  from  a  supersedeas  or  any  like  order,  if  eventually 
the  judgment  of  the  state  court  should  be  affirmed  or  the  writ  of  error 
dismissed,  would  equal  the  injury  which  would  otherwise  ensue,  we 
think  no  supersedeas  or  kindred  order  should  be  granted. 

The  writ  of  error,  however,  was  allowed,  and  the  matter 
might  have  been  brought  before  the  Supreme  Court  of  the 
United  States.  The  Roosevelt  electors,  however,  carried  the 
state  primaries  by  over  thirty  thousand  and  then  voluntarily 
withdrew. 

These  two  instances  are  illustrations  of  the  new  problems 
and  difficulties  which  the  system  of  direct  primaries  has  intro- 
duced into  the  party  machinery.    It  is  true  that  the  election  of 
1912  was  an  extraordinary  one,  in  that  the  Republican  party 
was  hopelessly  divided  and  both  factions  were  willing  to  gain 
any  advantage  which  the  new  laws  might  give.    Nevertheless, 
as  the  Democratic  convention  showed,  the  primaries  have  intro- 
duced new  forces  which  the  party  organizations  cannot  lightly 
disregard.    National  parties  are,  it  is  true,  but  voluntary  organi-  state  laws 
zations  and  may  make  their  own  rules.    But  since  they  operate  pa?tySed 
within  states  which  have  by  law  fixed  and  directed  the  operation  Practice 
of  political  parties,  a  conflict  is  inevitable  unless  the  rules  of 
the  party  are  in  harmony  with  the  laws  of  the  states.    If  there 
be  a  conflict,  it  is  clearly  seen  from  the  case  of  California  that 
the  law  of  the  state  will  override  the  practice  of  the  party. 

The  election  of  the  presidential  electors  within  the  states  is  Election  of 
in  no  way  different  from  other  elections.  Generally  the  entire  electors1  u 
ticket  for  state  officers,  representatives  to  Congress,  and  presi- 
dential  electors  is  voted  upon.  The  ballots  are  counted  and  the 
returns  filed  with  proper  state  officers  who  follow  the  procedure 
already  described. 


CHAPTER  VIII 

THE  POWERS  OF  -THE  PRESIDENT 

classification       The  powers  granted  to  the  president  by  the  Constitution  may 
y^thod of  bg  conveniently  grouped  in  six  classes:  (i)  the  general  execu- 
"Cpowe«      tive   power,    (2)   the   power   of  'appointment,    (3)    the    military 
^d'entof'    P°wer»  (4)  the  Power  in  foreiSn  affairs>  (5)  the  legislative  power, 
(6)  the  power  of  pardon.    To  these  should  be  added -the  power 
which  the  president  exercises  as  the  official  leader  of  his  political 
(a)  powers      party.    Some  of   these  powers  the  president  exercises  almost 
independently  of  Congress,  and  these  will  be  fully  treated  in 
this  chapter.    Other  powers  are  shared  with  Congress,  but  the 
president        initiative  being  with  the  president,  they  will  also  be  discussed 
here.    The  complex  and  delicate  relations  which  the  president 
has  with  Congress  cannot  be  understood  until  the  functions  or 

(3)  powers      operations  of  Congress  are  clearly  in  mind,  and  therefore  some 
w!thy  8l      l   powers  must  be  treated  both  in  the  chapter  on  the  president  and 
congress        in  tnat  on  Congress.    Finally,  some  of  the  powers,  like  the  mil- 

(4)  Extra-       itary  power,  are  so  important,  and  the  action  of  Congress  in 

furthering  them  so  necessary,  that,  although  mentioned  in  this 
chapter,  they  must  be  treated  at  length  in  subsequent  chapters. 

THE  POWER  OF  THE  PRESIDENT  AS  LEADER  OF  HIS  PARTY 

Party  system  The  most  important  power  of  the  president  comes  not  from 
the  Constitution  but  from  the  political  system  which  the  Con- 
stitution made  necessary.  As  has  been  shown,  the  governmental 
machinery  would  not  operate  without  political  activity.  This 
political  activity  is  performed  by  means  of  parties.  Parties 
direct  and  supplement  the  working  of  the  constitutional  rules, 
and  determine  the  choice  of  the  president  and  condition  many 
of  his  actions.  In  other  words,  the  president  is  the  product  of 
the  party  system.  Great  as  his  constitutional  powers  are,  they 
are  vastly  extended  through  his  influence  as  the  leader  of  his 

1 68 


THE  POWERS  OF  THE  PRESIDENT  169 

party.  Conversely,  the  fact  that  the  party  makes  the  president 
limits  or  subordinates  the  use  of  these  great  powers  to  the 
policy  of  his  party.  The  president  is  at  once  superior  to  and 
subordinate  to  his  party. 

At  the  first  election  of  Washington  political  parties  were  not  Party  system 
organized.    Like  many  of  his  contemporaries  he  regarded  them  stood^efore 
as  factions  dangerous  to  the  state.    Therefore,  believing  that  he  I8o° 
was  responsible  to  no  party  and  leader  of  no  faction,  he  included 
in    his   cabinet   advisers   holding   such    contradictory   views   as 
Hamilton  and  Jefferson.    To  his  failure  to  recognize  even  the 
inchoate  parties  of  his  day  were  due  many  of  the  difficulties  of 
Washington's  administrations.    The  election  of  1800,  however, 
was   conducted   by   regularly   organized   parties,   and   Jefferson 
came  into  office  as  the  leader  of  his  party.    Since  then,  with 
the  possible  exception  of  the  second  administration  of  Monroe 
when  there  was  no  organized  opposition,  every  president  has  been 
a  party  president,  but  not  necessarily  a  partisan  president. 

The  distinction  between  a  partisan  and  a  party  president  is  Party  and 
a  vital  one  and  is  the  key  to  the  position  of  the  president  as 
a  party  leader.  At  times  it  is  difficult  to  classify  correctly  a 
specific  action.  Much  depends  upon  the  point  of  view  of  the 
critic,  and  many  times  it  is  merely  a  question  of  degree.  Yet 
the  organization  of  political  parties  is  so  necessary,  their  power 
and  their  action  so  far-reaching,  that  certain  broad  principles 
must  be  recognized.  The  president  must  have  subordinates 
Tvhom  he  can  trust  and  who  are  in  sympathy  with  the  princi- 
ples of  his  party.  To  obtain  these  subordinates  he  must  remove 
some  officeholders  and  appoint  members  of  his  own  party.  Are 
these  part}'  or  partisan  appointments  ?  To  what  extent  should 
they  be  made,  and  to  what  kind  of  officials  should  such  action 
be  applied  ?  These  questions  will  be  further  discussed  when  the 
subject  of  "  Civil  Sendee  Reform  "  is  considered.  But  it  is 
necessary  to  recognize  that  they  are  questions  which  even  the 
most  unpartisan  executive  must  face  and  answer  in  a  way  which 
will  accord  both  with  the  efficiency  of  his  administration  and 
the  demands  of  his  part}-.  Again,  the  president  can  obtain  legis- 
lation only  from  Congress.  He  must  therefore  recognize  his 
party  in  that  body,  must  hold  its  confidence,  and  must  unite  it. 


President 


170    THE  GOVERNMENT  OF  THE  UNITED  STATES 

To  do  so  he  may  be  forced  to  yield  to  demands  which  seem 
partisan  or  unwise.  An  illustration  may  be  seen  in  the  action  of 
Resident  Wilson  in  signing  the  Sundry  Civil  Appropriation 
of  1913.  This  bill  contained  a  provision  which  forbade  the 
Hse  of  any  of  the  fund  appropriated  for  the  prosecution  of  labor 
unions  or  farmer's  associations  for  violations  of  the  act  prohibit- 
ing the  restraint  of  trade.  President  Taft  had-  previously  vetoed 
a  bill  containing  such  a  clause  on  the  ground  that  it  was  class 
legislation  "  of  the  most  vicious  sort."  President  Wilson,  how- 
ever, signed  the  bill,  although  he  stated  that,  had  it  been  pos- 
sible, he  would  have  "  vetoed  that  item,  because  it  places  upon 
the  expenditures  a  limitation  which  is  in  my  opinion  unjustifiable 
in  character  and  principle."  1  In  fairness  to  President  Taft  and 
President  Wilson  it  should  be  remembered  that  the  former  was 
the  defeated  candidate  of  a  defeated  party,  about  to  retire  ;  while 
the  latter  was  the  successful  leader  of  a  victorious  party,  which 
was  almost  unanimously  in  favor  of  this  clause,  and  which  was 
about  to  undertake  a  difficult  and  complicated  program.  Party 
unity  meant  more  to  President  Wilson  at  the  beginning  of  his 
administration  than  it  did  to  President  Taft  upon  the  last  day 
of  his  term  of  office. 

influence  and       The  relation  of  the  president  to  his  party  has  varied  at  differ- 
EJesfd'ents       ent  times.    Jefferson,  Jackson,  Lincoln,  Roosevelt,  and  Wilson 
v*reonlii?       dominated  their  parties.    They  were  leaders  of  their  parties  —  to 
andassocia-    factions  within  them  they  seemed  like  dictators.    To  such  an 
extent  did  Jackson  dominate  his  party,  and,  through  it,  all  the 
functions  of  the  government,  that  Von  Hoist  has  entitled  his 
administrations  "  the  reign  of  Andrew  Jackson."    Yet  Jackson's 
influence  was  less  than  that  of  Lincoln,  who,  to  the  attributes 
of  a  party  leader,  added  the  almost  despotic  war  powers  which 
Congress  conferred   upon  him ;  while  President  Wilson  exer- 
cised not  only  most  of  the  powers  which  were  given  to  Lincoln 
but,  because  of  changed  economic  and  industrial  conditions,  pos- 
sessed far  wider  discretionary  powers  than  were  ever  exercised 
by  any  other  president.    These  powers  made  him  not  only  the 
ruler  of  the  nation  but  the  absolute  dictator  of  his  party.    On 

1  George    Harvey,    "  Six    Months    of    Wilson,"    North    American    Review 
(November,  1913),  pp.  577,  584. 


THE  POWERS  OF  THE  PRESIDENT  1 71 

the  other  hand,  Van  Buren,  Tyler,  Hayes,  and  Garfield  cannot 
be  called  leaders  either  of  their  parties  or  of  opinion  in  the 
country,  while  Pierce  was'  the  weakest  of  all  presidents  and 
much  under  the  influence  of  his  cabinet.1  In  recent  years  popu- 
lar approval  has  almost  invariably  been  given  to  those  presidents  popular  sup- 
who  lead  or  even  coerce  their  parties.  Thus  Cleveland,  even  in 
defeat,  was  more  highly  esteemed  than  the  faction  of  his  party 
which  thwarted  him;  and  McKinley's  quiet  domination  of  his  or  to  congress 
party  made  him  one  of  the  most  powerful  of  the  presidents.  Byi 
different  methods  Rooseveli  and  Wilson  brought  popular  ap- 
proval to  their  support  and  succeeded  in  controlling  or  even 
compelling  their  parties  to  carry  out  their  policies.  Generally 
the  appeal  of  the  official  leader  of  the  party  is  stronger  than 
that  of  an  assembly. 

One  great  element  of  strength  in  the  president's  position  is  President 
the  size  of  his  constituency.  The  whole  country  chooses  him.  becalSe  he 
The  senators  are  but  the  choice  of  the  states  and  the  representa-  ^Jojgents 
tives  of  still  smaller  units,  but  the  president,  alone  of  all  elected  country 
officers,  is  chosen  —  indirectly,  it  is  true  —  by  the  votes  of  the 
entire  nation.  He  is  thus  expected  to  rise  above  the  prejudices 
of  states  and  sections  and  to  speak,  act,  and  represent  the 
country  at  large.  He  cannot  be  thwarted,  although  he  may  be 
seriously  hampered,  by  merely  local  factions  within  his  party, 
for  his  party  is  not  sectional  but  national.  Such  sectional  dis- 
content sinks  into  insignificance  compared  with  the  welfare  of 
the  whole  party  whose  policy  the  president  seeks  to  carry  out. 
Thus,  although  the  senators  from  Louisiana  opposed  and  even 
voted  against  President  Wilson's  recommendation  for  free  sugar, 
it  is  inconceivable  that  the  vote  of  Louisiana  should  be  given  to 
a  Republican  candidate.  It  is  true  that  where  the  parties  are 
evenly  balanced,  local  dissatisfaction  may  become  a  serious 
handicap  to  the  success  of  the  president's  policy.  In  such  cases 
the  party  may  disavow  the  president,  as  the  Democrats  did 
President  Cleveland,  or  enough  votes  may  be  lost  to  produce 
either  a  local  change  or  possibly  a  change  in  the  majority 
throughout  the  country.  Under  normal  conditions,  however,  in 
the  frequent  compromises  which  are  the  necessary  consequents 

1  A.  B.  Hart,  Actual  Government,  p.  260. 


President's 
appeal  to 
public  opinion 
by  messages 


Speaking 
tours 


Power  of  ap- 
pointment 
may  be  used 
to  control 
party  or 
strengthen 
personal 
following 


1 72    THE  GOVERNMENT  OF  THE  UNITED  STATES 

of  *11  political  action  the  wishes  of  the  president  and  his  policy 
are  the  ones  most  likely  to  prevail.1 

The  extent  to  which  the  president  may  appeal  to  his  natic 
constituency  has  been  much  increased  in  recent  years.  The 
ordinary  method  is  by  messages  to  Congress.  These  messages, 
while  nominally  addressed  to  Congress,  are  utilized  to  explain 
the  president's  policy.  The  scant  courtesy  with  which  Congress 
during  President  Roosevelt's  second  administration  treated  some 
of  his  messages  indicated  a  feeling  on  the  part  of  Congress  that 
he  was  using  his  constitutional  prerogative  to  win  support  and 
coerce  Congress  rather  than  to  "give  the  Congress  information 
of  the  state  of  the  Union."  Both  President  Taft  and  President 
Roosevelt  while  employing  this  method  to  exert  their  influence 
made  extended  journeys  explaining  their  policies  and  seeking 
support.  So  great  was  the  popular  demand  for  the  presence  of 
the  president,  and  so  considerable  was  the  effect  of  these  tours 
and  appeals,  that  in  1910  Congress  appropriated  twenty-five 
thousand  dollars  for  traveling  expenses  for  the  president,  thus 
recognizing  that  in  popular  estimation  at  least  the  president  is 
the  official  head  of  the  party  as  well  as  of  the  nation. 

The  power  of  appointment  is  used  to  strengthen  the  presi- 
dent's position  within  the,  party.  When  it  is  remembered  that 
the  president  fills  positions  carrying  annual  salaries  amounting 
to  millions,  it  can  readily  be  imagined  that  few  care  to  defy 
him.  The  appointing  power  may  be  used  by  the  president  to 
obtain  legislation  he  desires,  to  strengthen  the  party  in  the 
country  at  large,  or  to  build  up  within  the  party  a  group  devoted 
to  the  president.  It  is  a  two-edged  weapon.  Used  positively  it 
may  strengthen  the  administration  and  its  supporters.  With- 
holding appointments  or  making  them  contrary  to  the  wishes  of 
the  local  leaders  may  result  in  the  downfall  of  the  leader.  Thus, 
in  turn,  the  leadership  in  New  York  passed  from  Platt  to  Odell  and 
then  to  Parsons  at  the  wish  of  the  president,  expressed  through 
appointments.  In  1910,  however,  this  power  was  threatened, 
but  with  little  success.  The  secretary  to  the  president  informed 
one  of  the  active  members  of  the  section  of  the  Republican  party 
known  as  "  insurgents  "  that  they  could  not  expect  to  be  consulted 

1  H.  J.  Ford,  The  Rise  and  Growth  of  American  Politics,  pp.  279  et  seq. 


THE  POWERS  OF  THE  PRESIDENT  173 

in  the  distribution  of  appointments  since  they  were  out  of  har- 
mony with  the  policy  of  the  president.  As  the  insurgents  were 
ready  to  defy  the  president,  this  threat  was  denounced  by  them  as 
an  improper  use  of  the  power  of  the  president,  and  the  policy  was 
never  actually  carried  into  effect.  It  should  be  remembered  that  at 
that  time  neither  was  the  Republican  party  united,  nor  had  Presi- 
dent Taft  attempted  to  utilize  his  great  powers  to  direct  its  policies. 

Through  his  veto  power  the  president  is  a  part  of  the  legisla-  veto  seldom 
ture,  and  it  is  not  often  that  his  opponents  muster  the  necessary 
two  thirds  to  override  his  objections.    Finally,  as  an  executive  President  as 
officer  enforcing  the  law,  the  president  can  stamp  his  policy  may^Sce 
upon  his  party,  so  that  in  the  eyes  of  the  public  the  action  of  hlsP°llcy 
the  president  expresses  the  ideas  of  the  party. 

With  these  constitutional  and  extra-constitutional  powers  the  President 
president  is  almost  irresistible  within  his  party.  With  the  excep-  Smost^icta- 
tion  of  Arthur  and  possibly  of  Hayes,  no  president  desirous  of  anVnam?his 
renomination  has  failed  to  obtain  it  from  the  hands  of  his  party.-  successor 
When  it  is  remembered  that  the  president  chooses  the  chairman 
of  the  national  party  committee,  and  thus  practically  controls  its 
action  between  conventions,  and,  as  has  been  shown,  the  con- 
vention itself  is  largely  controlled  by  the  committee,  it  cannot 
be  doubted  that  the  president's  influence  is  nearly  supreme.  Add 
to  this  the  patronage  which  the  president  may  put  at  the  disposal 
of  his  supporters  either  to  reward  their  activities  or  to  build  up  a 
personal  following,  and  it  must  be  admitted  that  the  president 
has  it  very  largely  in  his  power  to  dictate  either  his  own  nomi- 
nation or  that  of  another.  This  was  well  illustrated  by  the  two 
nominations  of  President  Taft.  In  1910  he  was  accepted  by 
the  party  at  the  behest  of  his  then  friend,  President  Roosevelt, 
in  spite  of  some  opposition.  In  1912  he  forced  his  own  nomi- 
nation in  spite  of  the  vigorous  opposition  of  Roosevelt,  whose 
influence  and  popularity  far  exceeded  that  of  President  Taft.  It 
is  true  that  with  the  extension  of  the  direct  primary  method  of 
nomination  of  delegates  to  the  convention  the  power  and  influence 
of  the  president  in  this  respect  is  likely  to  decline,  yet  his 
prestige  will  still  be  greater  than  that  of  any  other  individual. 

To  sum  up  :  A  popular  president  with  a  united  party  in  the 
majority  adds  to  his  wide  constitutional  powers  the  authority  of 


Constitu- 


,74    THE  GOVERNMENT  OF  THE  UNITED  STATES 

the  leader  of  a  successful  party.  There  seems  no  limit  to  the 
powers  er  of  such  a  president,  and  in  time  of  war,  as  the  admims- 
to  ^trolls  of  Lincoln  and  Wilson  show,  the  spirit  of  the  Constitu- 
tion  may  be  violated  with  impunity.  On  the  other  hand,  the 
uonges  constitutional  powers  of  the  president  are  so  great  that  by  skill- 
executives  ful  use  of  them  he  may  control  his  party  even  after  he  has  lost 
its  confidence.  Again,  his  position  in  our  system  is  so  command- 
ing and  he  so  dominates  the  other  departments  of  the  govern- 
ment that  he  can  color  the  whole  administration  of  the  laws  with 
his  opinion  and  through  their  execution  attract  supporters  to 
himself.  Our  system  adds  to  a  constitutional  authority  which  few 
executives  possess,  the  power  of  party  leader  held  by  the  prime 
minister  in  England  —  even  more,  for  the  fixed  term  of  the 
president  makes  him  not  responsible  to  the  legislature,  as  is  the 
prime  minister,  but  superior  to  and  independent  of  it;  while 
the  length  of  the  term  gives  the  president  immunity  from  waves 
of  discontent  and  renders  his  position  more  secure  against 
popular  criticism. 

THE  PRESIDENT  AS  GENERAL  EXECUTIVE 

original  in-  It  has  just  been  shown  that  the  power  of  the  president  as  a 
Apolitical  and  party  leader  is  enormous.  This  was  probably  the 
* the  field  in  which  the  framers  of  the  Constitution  expected  the  presi- 
dent  would  be  most  active.  As  has  been  said,  "  In  the  United 
States  it  was  undoubtedly  intended  that  the  president  should  be 
little  more  than  a  political  chief ;  that  is  to  say,  one  whose  func- 
tion should,  in  the  main,  consist  in  the  performance  of  those  polit- 
ical duties  which  are  not  subject  to  judicial  control."  1  According 
to  Professor  Ford,  the  president  was  " .  .  .to  take  care  of  the 
government,  to  attend  to  its  needs,  to  shape  its  policy,  and  to 
provide  for  its  responsibilities."  2  The  executive  power  which  was 
given  to  him  was  given  in  specific  grants :  the  power  of  recom- 
mendation and  advice,  the  direction  of  foreign  affairs,  the  power 
of  appointment,  the  position  of  commander  in  chief,  and  the 
power  of  pardon.  His  position,  except  for  his  power  in  foreign 

1  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  II, 
p.  1156. 

a  H.  J.  Ford,  The  Rise  and  Growth  of  American  Politics,  p.  275. 


THE  POWERS  OF  THE  PRESIDENT  175 

affairs,  was  analogous  to  that  of  the  state  governors  of  the  time.1 

Nevertheless,  the  executive  power  of  the  president  has  greatly  President 
developed  until  to-day  he  is  not  merely  a  political  leader  but  the 

head  of  the  national  administration,  charged  with  the  oversight  ^ 

and  direction  of  the  government  and  the  execution  of  the  laws,  because  of 

This  change,  or  development,  in  his  position  is  due  to  two  (i)  liberal  in- 

reasons  :  In  the  first  place  there  are  clauses  in  the  Constitution  ofTonstitu- 

which,  perhaps  contrary  to  the  intent  of  the  f  ramers,  are  capable  tional  powers 
of  interpretation  in  such  a  way  as  to  extend  the  general  execu- 
tive power  of  the  president  beyond  the  specific  grants  given  to 

him.    In  the  second  place  Congress  has  by  its  interpretation  and  («)  grants  of 

application  of  these  clauses  laid  upon  the  president  new  duties  congress 
and  responsibilities,  which  greatly  extend  his  functions  as  an 
executive. 

The  executive  functions  of  the  president  are  thus  divided  into  Executive 

two  classes  :  those  granted  specifically,  which  have  been  men-  p^ldent  : 

tioned,  and  which  will  be  discussed  in  detail  ;  and  the  implied  (i)  Powers 

executive  powers  which  interpretatipji_ajicnegislation  have  widely  granted*  3 

developed.    These  last  powers  are  in  turn  capabie^TsubdivTsion.  constitution 

First,  those  general  executive  powers  which  are  granted  him  by  (a)  implied 

Congress  in  the  interpretation  of  Article  I,  Sect,  viii,  clause  18,  P°wers: 

Congress  shall  have  power  "  to  make  all  laws  which  shall  be  (a)  Powers 

necessary  and  proper  for  carrying  into  execution  the  foregoing  congress 


powers,  and  all  other  powers  vested  by  this  Constitution  in  the 
government  of  the  United  States,  or  in  any  department  or  office 
thereof  "  ;  and  second,  those  which  come  immediately  from  the  (&)  Powers 
Constitution  without  the  action  of  Congress,  and  are  found  by  tKefinSi 
implication  in  the  definition  of  the  executive  power  and  in  the  tivehpowerU" 
president's  oath.2 

Concerning  the  first  class  of  powers  there  can  be  little  ques- 
tion. Congress  can  legislate  upon  a  variety  of  subjects  and  by 

1  F.  J.  Goodnow,  Principles  of  Administrative  Law  in  the  United  States, 

PP-  71-73- 

2  The  executive  power  shall  be  vested  in  a  President  of  the  United  States  of 
America.  —  Article  II,  Sect,  i,  clause  i 

I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  the  office  of 
President  .  .  .  and  will,  .  .  .  preserve,  protect,  and  defend  the  Constitution.  .  .  . 
—  Article  II,  Sect,  i,  clause  7 

He  shall  take  care  that  the  laws  be  faithfully  executed.  ...  —  Article  II, 
Sect,  iii 


Creation  of 
new  depart- 
ments 

I 


Interstate 
commerce 


176    THE  GOVERNMENT  OF  THE  UNITED  STATES 

law  can  give  the  president  powers  which  otherwise  are  not 
granted  in  the  Constitution  in  order  to  carry  into  effect  the  will 
of  Congress.  If  the  congressional  act  be  constitutional,  the 
executive  power  of  the  president  is  thereby  extended.  Count- 
less examples  might  be  cited  of  this  congressional  extension  of 
the  power  of  the  president.  The  creation  of  .new  departments 
charged  with  new  functions  gives  to  the  president,  through  his 
appointing  power,  new  executive  power..  This  was  most  markedly 
illustrated,  however,  in  the  field  of  interstate  commerce,  in  1  894, 
at  the  time  of  the  Chicago  railroad  strike.  ^Congress^had  pla~ced 
upon  the  national  administration  the  responsibility  of  maintain- 
ing the  railroads  as  national  highways,1  and  by  statute  made  the 
following  provision  : 

Whenever,  by  reason  of  unlawful  obstructions,  combinations,  or 
assemblages  of  persons  ...  it  shall  become  impracticable  in  the  judg- 
ment of  the  President  to  enforce,  by  ordinary  course  of  judicial 
proceedings  the  laws  of  the  United  States  within  any  State  ...  it  shall 
be  lawful  for  the  President  to  call  forth  the  militia  .  .  .  and  to  employ 
such  parts  of  the  land  or  naval  forces  of  the  United  States  as  he  may 
deem  necessary  to  enforce  the  faithful  execution  of  the  laws  of  the 
United  States.2 

When  it  was  evident  that  the  authorities  of  the  state  of  Illinois 
were  not  able  or  willing  to  cope  with  the  situation,  President 
Cleveland  ordered  portions  of  the  regular  army  to  Chicago, 
against  the  protests  of  Governor  Altgeld.  Instead  of  arousing 
opposition,  this  action  was  approved  by  unanimous  resolutions 
in  both  branches  of  Congress.3 

laws  injeneral 


discretion.  The^tanffact  of  1909  provided  that  when  the 
president  was  convinced  that  any  country  was  discriminating 
against  the  commerce  of  the  United  States,  he  might  by  proc- 
lamation put  into  effect  a  higher  scale  of  duties.  The  inter- 
state commerce  act  of  1906  vested  in  the  Interstate  Commerce 

!  p  '  J-  FJ°rd'  ThC  RiSC  and  Growth  of  American  Politics,  p.  286. 

vised    Statutes,    Sects.    5298,    5299;    Grover    Cleveland,    Presidential 
rroblems,  pp.  94-95. 

8  H.  J.  Ford,  The  Rise  and  Growth  of  American  Politics,  pp.  28^-287. 


THE  POWERS  OF  THE  PRESIDENT  177 

Commission,  a  commission  appointed  and  removable  by  the 
president,  the  power  to  fix  not  merely  railroad  rates  but  rates 
charged  by  many  other  public  utilities.  With  the  declaration  of  Emergency 
war  against  Germany  numerous  acts  were  passed  which  extended  Jon  legisla" 
the  power  of  the  president,  not  merely  in  purely  military  affairs 
but  in  other  fields  as  well.  This  was  particularly  true  in  regard 
to  the  regulation  of  prices.  The  president  was  authorized  to 
fix  the  price  of  wheat  at  any  figure  above  a  minimum,  to  fix 
without  limit  the  price  of  coal,  coke,  and  copper,  and  regulate 
their  distribution  and  commandeer  any  manufacturing  plant 
engaged  in  producing  necessaries. 

These  acts,  as  well  as  all  jaws  which  the  executive  enforces,  Executive 
are  subject  to  executive  interjirej-ation.    In  case  positive  action 
is  taken  and  private  rights  infringed  the  individual  aggrieved 
may  appeal  to  the  courts  and  obtain  a  judicial  interpretation  reviewabie 

•11  i         T3    ,     •  •  .  .    .         by  the  court 

and  possibly  a  remedy.    But  in  many  instances  private  rights 
are  not  affected  in  such  a  way  that  the  action  of  the  president 
can  be  reviewed  by  the  courts.    In  these  cases  the  interpretation^ 
of  the  president  is  final.    Particularly  is  this  true  in  the  field  \ 
where    the    statute    gives    the    president    discretionary    power. 
Where  the  president  takes  no  action  by  reason  of  his  interpre-^/ 
tation  there  is  apparently  no  way  he  may  be  compelled  to  act. 
Thus  President  Roosevelt's  decision  that  the  anti-trust  laws  did 
not  apply  in  certain  instances  allowed  or  permitted,  by  absence 
of  executive  action,  conditions  which,  although  sharply  criticized 
by  Congress,  were  beyond  their  power  to  alter.1 

The  other  class  of  executive  powers  which  may  be  called 
general^re  those  which  are  derived  immgHiaf^ly  fVojm^  fhp  Con- 
stitution and  may  be  exercised  without  the  action  of  Congress. 
These  are  of  a  more  general  character  than  the  powers  expressly 
granted  to  the  president  by  the  Constitution  in  the  classes 
giving  him  the  power  of  appointment,  pardon,  and  so  forth, 
and  are  inherent  in  the  executive  power  itself.  Thus  treaties 
are  declared  the  supreme  law  of  the  land.  How  shall  these 

1  For  example,  President  Roosevelt,  acting  upon  the  advice  of  his  Attorney- 
General,  refused  to  order  the  prosecution  of  the  United  States  Steel  Corporation 
when  it  acquired  the  controlling  interest  in  the  Tennessee  Coal  and  Iron 

Company. 


Enforcement 
of  treaties 


Has  the 

president 

inherent 

executive 

power? 


Opinion  of 
the  court 


178    THE  GOVERNMENT  OF  THE  UNITED  STATES 

duly  ratified  treaties  be  enforced  should  Congress  fail  to  pass 
the  requisite  legislation  ?  This  was  answered  by  John  Adams 
by  the  executive  enforcement  of  the  extradition  provision  of  the 
Jay  treaty  for  which  Congress  had  neglected  to  provide.  When 
Adams  was  attacked  in  Congress,  John  Marshall,  then  a  member 
of  the  House  of  Representatives,  defended  him  in  an  argument 
which  the  Supreme  Court  subsequently  pronounced  conclusive. 
The  most  pertinent  part  of  Marshall's  argument  is  as  follows  : 

The  treaty,  which  is  a  law,  enjoins  the  performance  of  a  particular 
object.  The  person  who  is  to  perform  this  object  is  marked  out  by  the 
Constitution,  since  the  person  is  named  who  conducts  the  foreign 
intercourse,  and  is  to  take  care  that  the  laws  be  faithfully  executed. 
The  means  by  which  it  is  to  be  performed,  the  force  of  the  nation,  are 
in  the  hands  of  this  person.  Ought  not  this  person  to  perform  the 
object,  although  the  particular  mode  of  using  the  means  has  not  been 
prescribed?  Congress  unquestionably  may  prescribe  the  mode;  and 
Congress  may  devolve  on  others  the  whole  execution  of  the  contract : 
but  till  this  is  done,  it  seems  the  duty  of  the  executive  department  to 
execute  the  contract  by  any  means  it  possesses.1 

The  court  has  gone  even  further  and  has  apparently  affirmed 
the  existence  of  a  general  executive  power  outside  of  and  inde- 
pendent of  congressional  acts  and  treaties.  This  position  is  seen 
in  the  Neagle  case  decided  in  1889.  Neagle  was  a  deputy 
marshal  who  was  instructed  to  protect  Justice  Field  from  a  threat- 
ened assault  In  the  course  of  the  discharge  of  this  duty  he  shot 
and  killed  the  assailant  of  the  judge.  He  was  arrested  by  the 
state  authorities,  but  sued  out  a  writ  of  habeas  corpus.  On  appeal 
the  case  reached  the  Supreme  Court,  which  in  granting  the  writ 
said  in  part  : 2 

...  It  is  not  supposed  that  any  special  act  of  Congress  exists  which 
authorizes  the  marshals  or  deputy  marshals  of  the  United  States  in 
express  terms  to  accompany  the  judges  of  the  Supreme  Court  through 
their  circuits,  and  act  as  a  body  guard  to  them,  to  defend  them  against 
malicious  assaults  against  their  persons.  .  .  . 

In  the  view  we  take  of  the  Constitution  of  the  United  States,  any 
obligation  fairly  and  properly  inferable  from  that  instrument,  or  any 

1  5  Wheat.,  Appendix  I,  p.  27.  See  also  W.  H.  Taft,  Our  Chief  Magistrate 
and  his  Powers,  p.  87.  2  I;J5  y  s.  ,t  ^  ^ 


THE  POWERS  OF  THE  PRESIDENT  179 

duty  of  the  marshal  to  be  derived  from  the  general  scope  of  his  duties 
under  the  laws  of  the  United  States,  is  "  a  law  "  within  the  meaning  of 
the  phrase.  It  would  be  a  great  reproach  to  the  system  of  government 
of  the  United  States,  declared  to  be  within  its  sphere  sovereign  and 
supreme,  if  there  is  to  be  found  within  the  domain  of  its  powers  no 
means  of  protecting  the  judges,  in  the  conscientious  and  faithful  dis- 
charge of  their  duties,  from  the  malice  and  hatred  of  those  upon  whom 
their  judgments  may  operate  unfavorably.  .  .  . 

Is  this  duty  [that  of  the  president  to  take  care  that  the  laws  be  faith- 
fully enforced]  limited  to  the  enforcement  of  acts  of  Congress  or  of 
treaties  of  the  United  States  according  to  their  express  terms,  or  does  it 
^ include  the  rights,  duties,  and  obligations  growing  out  of  the  Constitu- 
%  tion  itself,  our  international  relations,  and  all  the  protection  implied  by 
the  nature  of  the  government  under  the  Constitution  ?  .  .  . 

We  cannot  doubt  the  power  of  the  president  to  take  measures  for 
'the  protection  of  a  judge  of  one  of  the  courts  of  the  United  States, 
•who,  while  in  the  discharge  of  the  duties  of  his  office,  is  threatened 
•with  a  personal  attack  which  may  probably  result  in  his  death,  and  we 
think  it  clear  that  where  this  protection  is  to  be  afforded  through  the 
civil  power,  the  Department  of  Justice  is  the  proper  one  to  set  in 
<motion  the  necessary  means  of  protection.  .  .  . 

This    opinion    was    vigorously   combated    by   the    dissenting  Approved  by 

judges,1  and  although  cited  with  approval  by  President  Taft,2  £raefstident 

must  not  be  considered  as  establishing  a  general  and  indefinite  Probable  ap- 

executive  power  in  all  cases  where  Congress  has  failed  to  act.  SpiSn  of°f 

Rather  the  true  interpretation  would  seem  to  be  that  exceptional  the  court 
circumstances  may  justify  an  executive  action  which  otherwise 
might  be  condemned.3 

1  A  portion  of  the  dissenting  opinion  is  as  follows :  *.*.'.  Again,  while  it  is 
the  president's  duty  to  take  care  that  the  laws  be  faithfully  executed,  it  is  not 
his  duty  to  make  laws  or  a  law  of  the  United  States.  The  laws  he  is  to  see 
executed  are  manifestly  those  contained  in  the  Constitution,  and  those  enacted 
by  Congress,  whose  duty  it  is  to  make  all  laws  necessaiyand  proper  for  carrying 
into  execution  the  powers  of  those  tribunals.  In  fact,  for  the  president  to  have 
undertaken  to  make  any  law  of  the  United  States  pertinent  to  this  matter  would 
have  been  to  invade  the  domain  of  power  expressly  committed  by  the  Constitu- 
tion exclusively  to  Congress.  That  body  was  perfectly  able  to  pass  such  laws  as 
it  should  deem  expedient  in  reference  to  such  matter  ;  .  .  .  and  there  was  not  the 
slightest  legal  necessity  out  of  which  to  imply  any  such  power  in  the  president." 
—  135  U.  S.  83,  84  2  W.  II.  Taft,  The  Presidency,  pp.  76-80. 

3  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  II, 
P-  H55- 


Some  presi- 
dents have  at 
times  acted 
as  if  vested 
with  inherent 
executive 
power 


This  criti- 
cized in  the 
Senate 


Changed  con- 
ditions and 
popular  de- 
mand seem 
to  sanction 
use  of  great 
executive 
power 


1 80  THE  GOVERNMENT  OF  THE  UNITED  STATES 

Yet  it  would  appear  as  if  at  times  certain  presidents  proceeded 
upon  the  implied  doctrine  contained  in  the  opinion  of  the  ma- 
jority of  the  court.  It  was  felt  by  many  that  President  Roosevelt 
exceeded  his  legal  powers,  when  he,  as  executive,  without  express 
legislative  authorization,  withdrew  from  occupation  certain  tracts 
of  public  lands  which  seemed  to  be  necessary  to  complete  his 
policy  of  the  conservation  of  the  water  power  of  the  United 
States.  In  international  affairs  his  action  in  relation  to  San 
Domingo,  in  proceeding  to  accomplish  by  executive  agreement 
what  the^  Senatejhadjef used  to  ratifyjas-ajreaty^  aroused^  great 
opposition,  and  led  Senator  Raynor  to  protest  againSt  such  an 
interpretation  of  the  gen^aHitiplTeTi  executive  power  as  follows  : 

Article  II  of  the  Constitution  says  the  executive  power  shall  be 
vested  in  a  President  of  the  United  States  of  America.  This  does  not 
vest  executive  power  in  any  greater  degree  than  Article  I  vests  legisla- 
tive power  when  it  says  that  all  legislative  power  herein  granted  shall 
be  vested  in  a  Congress  of  the  United  States,  or  than  Article  III  vests 
judicial  power  except  in  the  Supreme  Court  of  the  United  States.  .  .  . 

.  .  .  The  president  is  either  the  executive  officer  of  the  government,, 
vested  with  unlimited  executive  functions,  or  he  is  the  executive  acting 
under  special  and  delegated  powers.  Which  is  he  ?  Is  he  the  general 
executive  agent  of  the  people,  or  their  immediate  representative,  as  was 
once  claimed  by  one  of  his  predecessors  who  also  had  an  erroneous 
conception  of  his  prerogative,  or  is  he  a  special  agent  who  shall  look  to 
his  commission  and  credentials  for  his  authority  ?  There  are  unlimited 
executive  acts  performed  by  monarchical  rulers,  the  exercise  of  which 
the  framers  of  the  Constitution  never  intended  to  repose  in  the  president, 
and  therefore  they  circumscribed  his  functions.1 

Yet  in  spite  of  the  probable  intention  of  the  framers  of  the 
Constitution,  there  has  been  a  development  and  increase  of  these 
general  implied  powers  of  the  president,  just  as  there  has  been 
an  increase  of  the  president's  executive  power  through  congres- 
sional legislation.  In  spite  of  legal  argument  and  political  pro- 
test, it  appears  as  if  popular  approval  sanctioned  a  "  strong  " 
president  in  the  performance  of  many  acts  derived  from  the 
general  grant  of  executive  power.  It  was  popularly  said  that 

1  Congressional  Record,  January  31,  1907,  quoted  by  P.  S.  Reinsch,  Readings 
on  American  Federal  Government,  p.  14. 


THE  POWERS  OF  THE  PRESIDENT  181 

President  Taft's  administration  was  to  be  one  of  laws  and  not  of 
men,  yet  his  administration  met  with  more  severe  criticism  and 
popular  disapproval  for  what  it  failed  to  accomplish  than  did 
that  of  his  predecessor  who  accomplished  much  by  stretching 
his  executive  functions  to  the  utmost.  •  In  this  as  in  certain  other 
departments  of  the  government  the  rhangpH  so^iaj-attd^rjolitical 
conditions  have  forceji-a-grQwth  and  (fayelopmont  nf  fhr  CQnsfri- 
rnrion^ppffinpji^  frnrrmrr;  nor  jnsrifipii  by 

lega^reasoning,  ^ut  sancli^e^_bycustom  and 


Since  constitutional  amendment  so  lags  behind  the  popular  and 
political  interpretation,  numerous  illustrations  might  be  given  to 
show  that  a  president  who  confined  his  actions  to  the  literal 
word  of  the  Constitution  would  not  only  lose  the  popular  sup- 
port but  would  find  it  impossible  to  carry  on  the  existing  system 
of  government.  More  and  more  is  the  attention  of  the  public 
concentrated  upon  the  executive  and  more  and  more  is  constantly 
being  demanded  from  him.  His  responsibility  and  power  is 
more  clearly  recognized  and  more  widely  approved  than  that  of 
any  other  department  of  the  government. 

THE  POWER  OF  APPOINTMENT  AND  REMOVAL 

Two  of  the  most  important  executive  powers  of  the  president  president's 
are  the  power  of  appointment,  expressly  granted  to  him  by  the 
Constitution,  and  the  power  of  removal,  which  by  implication  and 
custom  has  been  generally  conceded  to  be  his.  The  power  of 
appointment,  however,  is  not  the  president's  exclusive  preroga- 
tive. It  is  shared  with  the  Senate,  when  acting  as  an  executive 
council,  and  may  be  vested  by  legislation  in  other  officers.  Aside 
from  the  elected  executive  officers  of  the  United  States  —  that 
is,  the  president  and  the  vice  president  —  and  the  legislators 
—  that  is,  the  senators  and  representatives  —  all  the  officials  of 
the  United  States  owe  their  offices  to  appointment,  or  to  election 
by  one  or  the  other  branch  of  Congress.  By  the  Constitution1 
the  House  of  Representatives  may  choose  the  speaker  and  other 
officers,  and  likewise  the  Senate  may  choose  its  officers,  other 
than  the  regular  presiding  officer,  the  vice  president.2  All 

1  Article  I,  Sect,  ii,  clause  5.  2  Article  I,  Sect,  iii,  clause  5. 


Definition  oi 


sutes 


1 82    THE  GOVERNMENT  OF  THE  UNITED  STATES 

other  officers  are  appointed.  The  Constitution,  moreover,  speci- 
fies that  the  important  officials,  ambassadors,  consuls,  public  min- 
isters, and  judges  of  the  Supreme  Court,  and  all  other  officers 
not  designated  "  inferior,"  shall  be  nominated  by  the  president 
and  confirmed  by  the  Senate.  The  aprx)intm^riUiUnfenOT 
cers  may  be  by  law  vested  in  the  president  alone,  in  thefieads 
of  the  departments,  or  in  the  courts  of  law. 

It  is  thus  necessary  to  define  the  term  "officer"  and  the 
adjective  "  inferior."  In  the  case  of  United  States  v.  Germaine,1 
the  Supreme  Court  held  that  a  surgeon  appointed  by  the  com- 
missioner of  pensions  was  not  an  officer  of  the  United  States  for 
the  reason  "  that  all  persons  who  can  be  said  to  hold  an  office 
under  the  Government  about  to  be  established  under  the  Con- 
stitution were  intended  to  be  included  within  one  or  the  other  of 
these  two  modes  of  appointment  there  can  be  but  little  doubt." 
This  reasoning  was  later  quoted  with  approval  in  United  States 
v.  Mouat : 2 

Unless  a  person  in  the  service  of  the  government,  therefore,  holds  his 
place  by  virtue  of  an^appo^ntment  J^y  the  .ptsskfcnt,  or  on^oJL-the 

an  appointment,  he  is  not,  strirtly  speaking,  an  officer^of  the  United 
States.  — — * 


personal  rep-  Without  attempting  to  classify  the  number  of  subordinates 
appointed  by  others  than  heads  of  departments  or  judges,  it  is 
1'  ev^ent  tnat  certain  verv  important  posts  are  held  by  persons 

united  stated  who  technically  are  not  officers  of  the  United  States.  For  exam- 
We,  in  1913  President  Wilson,  not  wishing  to  recognize  the 
Huerta  government  in  Mexico,  as  he  would  have  done  by  ap- 
pointing a  minister  to  that  country,  dispatched  Mr.  Lind  as  his 
agent  without  senatorial  confirmation.  By  the  same  method, 
although  for  a  very  different  reason,  President  Roosevelt  desig- 
nated Mr.  Reid  as  envoy  to  the  coronation  of  Edward  VII  and 
was  himself  designated  by  President  Taft  as  United  States  repre- 
sentative at  the  funeral  of  the  same  sovereign.  In  like  manner, 
during  the  past  years,  President  Wilson  has  employed  more  than 
one  person  to  investigate  conditions  or  obtain  information  or 


1  99  U.  S.  508,  510. 


I24  u  s 


THE  POWERS  OF  THE  PRESIDENT  183 

convey  his  ideas.  These  envoys  or  agents  are  not  officials  of  the 
United  States  nor  could  they  have  received  any  .compensation 
except  from  the  president's  contingent  fund,  unless  Congress 
should  later  make  special  appropriations  for  them.  They  were 
agents  of  the  president,  not  officers  of  the  United  States. 

The  term  "  inferior  officer  "  is  not  defined  by  the  Constitution,   "inferior 
but  would  seem  to  mean  those  in  whom  the  power  of  appoint-  thosewiioare 
ment  may  not  be  vested ;  that  is,  persons_other  _than heads  of  JJ^o1**6 
departments,  or  judges,  or  the  presidejitjiirnself.    This  logical  estimation 
definition,  however^  would  lead  to  a  violent  change  in  practice 
should  Congress  by  law  attempt  to  vest  the  appointment  of  any 
important  officials  in  the  heads  of  departments.    For  example, 
many  of  the  postmasters  in  the  larger  cities,  the  collectors  of  the 
great  ports,  the  superintendent  of  the  mints,  and  even  less  im- 
portant officers  are  appointed  not  by  the  heads  of  the  depart- 
ments but  by  the  president  with  confirmation  by  the   Senate. 
Should  this  custom,  which  has  been  followed  since  the  establish- 
ment of  the  government,  be  altered,  as  Congress  undoubtedly 
has  the  right  to  alter  it,  cases  might  come  before  the  courts  and 
judicial  interpretation  of  "  inferior  "  might  be  obtained.    As  it 
now  stands,  custom  and  practice  interpret  "  inferior  "  to  mean  dis- 
tinctly subordinate,  not  merely  in  the  performance  of  duties,  nor 
in  the  scale  of  the  whole  hierarchy  of  officials,  but  subordinate 
in  local  estimation  as  well. 

While  Congress  has  the  power  to  create  offices  and  Define  the  congress  may 
duties  incident  to  them,  it  has  not  the  power  to  designate  the  officfaisgn 
officials  to  occupy  them.    This  is  the  function  of  the  appointing  gJ^n^wS" 
power.    Thus,  while  it  has  been  held  allowable  for  Congress  to  their  offices 
extend  the  functions  of  an  official  by  the  addition  of  germane 
duties,  it  cannot  designate  an  official,  or  class  of  officials,  to  per- 
form duties  which  are  unconnected  with  the  office.   For  example, 
in  1790  the  justices  of  the  Supreme  Court  expressed  their  opin- 
ion that  an  act  of  Congress  making  them  examining  magistrates 
for  pensions  was  to  assign  to  them  duties  unconnected  with  their 
office,  and  in  1851  they  held  a  law  unconstitutional  which  directed 
the  territorial  judge  and  district  judge  to  act  as  commissioners 
for  claims  under  the  treaty  of  1819  with  Spain.1 

1  United  States  v.  Ferreira,  13  How.  40. 


Process  of  ap- 


1  84    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  method  by  which  all  appointments  are  made  and  the  ap- 
d       pointees  invested  with  their  authority  is  a  combined  constitutional 
fie  constitu-  and  political  process.   The  constitutional  or  legal  steps  are  clearly 
described  in  Marbury  v.  Madison  :  l 

1.  The  Domination.    This  is  the  sole  act  of  the  president,  and  is 
completely  voluntary. 

2.  The  appointment.   This  is  also  the  act  of  the  president,  and 
is  also  a  voluntary  act,  though  it  can  only  be  performed  by  and  with 
the  advice  and  consent  of  the  Senate. 

3.  The  commission.    To  grant  a  commission  to  a  person  appointed, 
might,   perhaps,  be  deemed   a   duty   enjoined   by  the   Constitution. 
"He  shall,"  says  that  instrument,  "  commission  all  officers  of  the 
United  States." 

The  acts  of  appointing  to  office,  and  commissioning  the  person  ap- 
pointed, can  scarcely  be  considered  as  one  and  the  same  ;  since  the 
power  to  perform  them  is  given  in  two  separate  and  distinct  sections 
of  the  Constitution. 


In  actual 
process  of 
appointment 
president 
relies  on 
advice  of 
members  of 
party 


Power  of  the 
Senate  to 
confirm  or 
reject  presi- 
dent's 
nominees 


In  actual  practice,  however,  a  somewhat  more  complicated 
process  is  followed.  It  is  manifestly  impossible  for  the  president 
to  know  personally  the  candidates  or  examine  with  care  their 
qualifications.  Even  in  Washington's  administrations,  when  the 
number  of  officials  was  small,  the  president  was  accustomed  to 
rely  upon  suggestions  of  senators  and  representatives.  With  the 
increase  of  the  number  of  appointments  this  advice  or  "back- 
ing "  has  become  more  necessary  and  powerful.  In  the  case  of 
the  members  of  the  House  of  Representatives,  such  suggestions 
are  purely  advisory,  and  failure  to  comply  with  them  can  bring 
little  unpleasant  consequence  upon  the  president.  Not  so  with 
those  from  the  Senate.  This  body,  through  the  power  of  con- 
firmation, can  block  the  appointment,  either  by  refusing  to  act 
upon  the  nomination  or  by  refusing  to  confirm  it.  So  conscious 
is  the  Senate  of  this  power  that  at  times  it  may  almost  be  said 
that  the  senators  suggest  the  names,  the  president  submits  them, 
and  the  Senate  confirms  the  nomination.  The  president  first 
consults  the  senators  of  his  party  from  the  state  in  which  the 
appointment  is  to  be  made  or  from  which  the  appointee  comes. 
A  custom,  known  as  "  senatorial  courtesy,"  has  grown  up  by 

156. 


natorial  cou 
anch^fSTfTss, 


THE  POWERS  OF  THE  PRESIDENT  185 

which  the  senators  of  the  majority  follow  the  lead  of  the  senator  "senatorial 
concerned  in  their  ratification  or  opposition  to  the  appointment.  ° 
This  is  well  illustrated  by  the  unsuccessful  struggle  of  President 
Cleveland  with  the  Democratic  senators  from  New  .York.  The 
President  sent  in  succession  the  names  of  two  New  York 
lawyers,  leaders  of  the  bar,  as  his  nominees  for  a  justice  of  the 
Supreme  Court.  But  the  hostility  of  the  senators  prevented 
their  confirmation  and  the  President  was  obliged  to  choose  his 
candidate  from  some  other  state.  When  both  the  senators  are 
of  the  same  party  as  the  president,  the  patronage  is  divided 
between  them ;  but  when  only  one  senator  is  of  the  president's 
party,  he  alone  is  consulted.  When  both  senators  are  in  oppo- 
sition, the  president  consults  the  local  leaders  of  his  party  in  the 
state  or  one  of  the  representatives.  Custom,  however,  has  gone 
still  further,  and  representatives  have  been  known  to  claim  tha£ 
inasmuch  as  the  senators  were  consulted  for  appointments  of  a 
state-wide  character,  they  should  be  consulted  with  regard  to  the 
nominations  to  local  offices  within  their  districts.  This  reasoning 
is  without  legal  or  constitutional  sanction,  but  is  based  -upon  the 
very  real  exigencies  of  party  politics.  If  the  representatives  of 
the  party  can  have  a  small  share  of  the  "  loaves  and  fishes,"  their 
path  to  power  is  made  smoother,  and  their  local  influence  in  the 
party  is  apt  to  be  increased. 

Although  senatorial  courtesy  and  congressional  influence  may  President 
be  invoked  for  any  and  all  appointments,  the  president  is  given  choice  incase 
almost  free  hand  in  certain  classes  of  appointments.  The  cabinet 
officers  are  the  personal  choice  of  the  president,  and  seldom  has 
a  nomination  been  defeated.1    In  like  manner  the  heads  of  the 
important  bureaus,  and  the  ambassadors  and,  to  a  less  extent, 
the  judges,  are  usually  left  to  the  discretion  of  the  president,  as 
far  as  senatorial  courtesy  is  concerned.    But  this  does  not  mean 
that  the  president  has  free  hand  in  his  appointments.    Even 

1  Taney,  who  as  a  "  recess  appointment "  removed  the  deposits  from  the 
United  States  bank,  was  not  confirmed  in  1834 ;  Stanbery,  who  had  r.esigned  to 
assist  Johnson  in  the  impeachment  proceedings,  failed  confirmation  when 
the  president  attempted  to  reappoint  him  in  1868;  and  Grant's  nomination  of 
A.  T.  Stewart  as  Secretary  of  the  Treasury,  which  was  made  in  defiance  of 
an  almost  forgotten  law  prohibiting  the  appointment  of  a  "merchant,"  was 
withdrawn  after  Congress  had  refused  to  repeal  the  law. 


-  Recess  ap- 


of  senate 


186    THE  GOVERNMENT  OF  THE  UNITED  STATES 

membership  in  his  cabinet  has  been  dictated  by  political  neces- 
sity rather  than  by  personal  choice.  A  recent  example  was 
probably  to  be  seen  in  the  appointment  of  Senator  Sherman  as 
Secretary  of  State  in  President  McKinley's  first  cabinet,  thereby 
opening  the  Ohio  senatorship  to  Mr.  Hanna,  the  successful  cam- 
paign manager.  Political  conditions,  preelection  pledges,  and 
contributions  to  the  party  funds  are  often  as  great  factors  as 
diplomatic  ability  in  appointments  to  foreign  posts. 
4<By  the  Constitution1  the  president  is  given  power  to  fill  any 
vacancies  that  may  occur  during  the  recess  of  the  Senate,  and 
to  issue  temporary  commissions  which  shall  expire  at  the  end  of 
the  next  session.  The  necessity  of  this  provision  is  obvious,  but 
in  practice  this  power  has  sometimes  been  used  in  an  unexpected 
way  to  thwart  the  desire  of  the  Senate.  Appointments  have  been 
made  during  the  recess  of  the  Senate  and  temporary  commis- 
sions have  been  issued  to  hold  until  the  Senate  shall  have  acted 
upon  the  nomination,  which  would  not  be  sent  until  the  last 
days  of  the  session.  Then  if  the  confirmation  should  fail  a  new 
commission  would  be  issued  upon  the  next  day  which,  being  in 
a  recess,  would  hold  over  until  the  end  of  the  next  session.? 


1  Article  II,  Sect,  ii,  clause  3. 

2  The  following  letter  illustrates  the  method  by  which  President  Roosevelt 
retained  William  D.  Crum,   a  negro,  in   office,  in  spite  of  the  opposition  of 
the  Senate  : 

OFFICE  OF  THE  SECRETARY, 
TREASURY  DEPARTMENT, 


Replying  to  Senate's  resolution  of  January  25,  1904,  I  beg  to  advise,  William  D.  Crum 
was  appointed  collector  of  the  port  of  Charleston,  South  Carolina,  March  20,  1903,  and  a 
temporary  commission  issued.  Mr.  Crum  qualified  by  executing  a  bond  for  $50,000  and 
took  oath  of  office  March  20,  1903.  Mr.  Crum  was  again  appointed  December  7,  1903, 
and  has  given  bond  in  the  sum  of  #50,000  and  took  office  on  January  9,  1904.  There  has 
been  no  third  appointment.  .  .  . 

The  resolution  also  asks,  «  Is  Mr.  Crum  now  in  office  ;  and  if  so,  under  what  authority 

law  ?  »   William  D.  Crum  is  de  facto  collector  at  the  port  of  Charleston,  South  Carolina. 

Whether  he  holds  his  position  under  authority  of  law  is  determinable  not  by  the  executive 

department  of  the  government,  but  by  the  judiciary,  and  by  that  only.   He  is  not  receiving 

pay  because  of  the  provisions  of  Sect.  1761. 

Very  truly  yours, 

Hon.  WilHam  P.  Frye,  ^  "'  ^  ^^  «  "*  TreaSUIy] 

President  pro  tempore  of  the  United  States  Senate 

—  Congressional  Record,  January  28,  1904,   Vol.  XXXVIII,  Part  II,  p.  1302 


THE  POWERS  OF  THE  PRESIDENT  187 

The  terms  of  appointed  officers,  except  the  judges,  were  not  Terms  of 
defined  by  the  Constitution  nor  by  early  legislation.    Two  excep-  officers 
tions,    however,    were   the    federal    marshals    and    the    federal 
district  attorneys.    In  1820  Secretary  of  the  Treasury  Crawford, 
ostensibly  to  secure  efficiency,  but  really  to  build  up  a  personal 
following,  secured  the  passage  of  an  act  which  fixed  the  term 
of  certain  treasury  officials  at  four  years.    Subsequent  legislation 
has  extended  this  until  practically  all  .  but  the  most  important 
officers  are  appointed  for  terms  of  four  years.  ^ 

Although  the  Constitution  is  silent  concerning  the  president  s  President's 
power  of  removal  and  although   early  practice  did   not  fix  a 


definite  term,  it  was  decided  almost  at  the  inauguration  of  the 

government  that  the  president's  power  of  appointment  included  appointment 

the   power   to  remove  those   officers   he  had  appointed.    The 

debate  upon  this  question  took  place  in  Congress  during  May, 

1789,  over  the  question  of  the  establishment  of  a  department 

of   Foreign   Affairs,   now   the   Department   of   State.     In    the 

House,  Madison  moved  that  the  secretary  "  shall  be  appointed 

by  the  President  with  the  advice  and  consent  of  the  Senate  ; 

and   to   be   removed   by  the   President."    Although   questions 

were  raised  over  the  power  thus  given  the  president,  and  the 

words   "to  be  removed  by  the   President"  do  not  appear  in 

the  act,  yet  the  principle  Madison  contended  for  was  recognized. 

For  in  the  definition  of  the  duties  of  the  chief  clerk  is  found 

this  phrase  :  "  Whenever  the  said  principal  officer  [the  secretary] 

shall  be  removed  by  the  president  of  the  United  States  ... 

he  [the  chief  clerk]  .  .  .  shall  be  custodian  of  the  records."  l 

In  this  form  it  was  adopted  by  the  Senate,  although  it  required 

the  vote  of  the   vice  president  to  break  the  tie.    From  that 

time  until   1867  the  president  exercised  this  power  and  Con- 

gress has  acquiesced  in  it,  even  when  Jackson  removed  a  secre- 

tary of   the   treasury   for  the    refusal  to    carry  out   his  policy 

rather   than   that  of    Congress.    In    1867,    however,    the    first  Tenure  of 

Tenure  of  Office  Act  was  passed  by  a  Republican  Congress  in 

opposition  to  Johnson.    By  this  act  all  persons  appointed  by  the 


president,  with  the  advice  and  consent  of  the  Senate,  could  be  power  of 

removal 

removed   only  with-  that    consent.2     The    president,    however, 

1  i  Stat.  at  Large,  p.  28.  2  16  Stat.  at  Large,  p.  6. 


188    THE  GOVERNMENT  OF  THE  UNITED  STATES 

during  the  recess  of  the  Senate,  could  suspend  an  officer, 
but  within  twenty  days  after  the  opening  of  the  next  ses- 
sion of  the  Senate  he  must  present  his  reasons  for  the  sus- 
pension. Should  the  Senate  deem  these  unsatisfactory,  the 
suspended  officer  "  shall  forthwith  resume  the  functions  of  his 
office."  This  act  was  passed  to  embarrass  Johnson,  and  his 
failure  to  comply  with  it  was  the  leading  article  of  the  impeach- 
ment charges  against  him.  Shortly  after  the  accession  of 
President  Grant  the  law  was  amended  so  that  the  pretended 
power  of  the  Senate  to  reinstate  a  suspended  officer  was 
eliminated,  as  well  as  the  requirement  that  the  president  must 
submit  to  the  Senate  his  reasons  for  his  action.  Such  was  the 
condition  of  affairs  when  President  Cleveland  came  to  office  in 
1885,  the  first  Democratic  president  to  be  elected  for  nearly 
thirty  years.  As  a  result  of  the  many  necessary  changes  in  the 
civil  service,  it  was  within  the  power  of  the  Senate,  then  Repub- 
lican in  majority,  to  embarrass  the  president.  This  they  did  by 
utilizing  the  Tenure  of  Office  Act.  The  particular  question  arose 
over  the  right  of  the  president  to  direct  one  of  his  cabinet  to  with- 
hold information  which  had  been  requested  by  the  Senate  con- 
The  court  has  cerning  the  removal  of  some  officers.1  The  President  vindicated 
president  may  his  position,  and  in  the  following  year  the  Tenure  of  Office  Act 
officer 'before  was  rePealed.2  In  1896  the  power  of  the  president  to  remove 
end  of  term  a  district  attorney  within  the  four  years  for  which  he  was 
appointed  was  upheld  by  the  Supreme  Court.3  Hence  it  may 
be  asserted  that  the  early  practice  in  accord  with  Madison's 
suggestions  was  the  correct  one,  and  that  the  Tenure  of  Office 
Act  was  of  doubtful  constitutionality. 

THE  WAR  POWERS  OF  THE  PRESIDENT 

war^powersof      The  military  power  of  the  president  is  derived  from  several 

from  connsti-    sources.    Part   comes   directly   from   the    Constitution,    part   is 

arti°of and      granted  him  as  the  result  of  congressional  statute,  and  part  is  exer- 

congress        cised  under  the  general  executive  power  inherent  in  his  office. 

For  example,  from  the  Constitution  directly  comes  his  authority 

1  See  p.  187. 

!  See  Grover  Cleveland,  Presidential  Problems,  pp.  28-76. 
8  Parsons  v.  United  States,  167  U.  S.  324. 


THE  POWERS  OF  THE  PRESIDENT  189 

as  commander  in  chief  of  the  army  and  navy.  In  exercising 
this  power  the  president  can  direct  the  placing  of  the  forces 
and  name  the  commanding  officers,  and  take  all  means  not 
prohibited  in  international  law  to  distress  the  enemy.  By  con- 
gressional enactment  the  president  can  commission  such  officers 
as  are  provided  for  in  the  different  branches  of  the  service,  and 
from  the  same  source  comes  his  power  to  utilize  the  militia  of 
the  states  or  the  national  forces  to  suppress  insurrections  or 
disorder. 

It  should  be  noted,  however,  that  although  this  power  comes 
from  an  act  of  Congress,  which  may  be  repealed  or  modified, 
the  president  cannot  be  questioned  in  exercising  it,  once  it  is 
granted.  This  was  made  clear  in  Martin  v.  Mott,1  where  the 
court  said,  construing  a  statute  granting  the  president  power  to 
utilize^  the  militia  of  the  states  to  suppress  disorder : 

The  power  thus  confided  by  Congress  to  the  president  is,  doubtless,  president  the 
of  a  very  high  and  delicate  nature.  ...    It  is,  in  its  terms,  a  limited 
power,  confined  to  cases  of  actual  invasion,  or  imminent  danger  of  powers 
invasion.    If  it  be  a  limited  power,  the  question  arises,  by  whom  is  the  congress^ 
exigency  to  be  judged  of  and  decided  ?  Is  the  president  the  sole  and 
exclusive  judge  whether  the  exigency  has  arisen,  or  is  it  to  be  considered 
as  an  open  question  upon  which  every  officer  to  whom  the  orders  of 
the  president  are  addressed,  may  decide  for  himself.  .  .  .  ?  We  are  all 
of  the  opinion  that  the  authority  to  decide  whether  the  exigency  has 
arisen  belongs  exclusively  to  the  president  and  that  his  decision  is 
conclusive  upon  all  other  persons. 

It  must  be  remembered,  however,  that  his  power,  being  derived 
from  Congress,  may  be,  by  act  of  Congress,  withdrawn,  limited, 
or  amended. 

As  the  general  executive  charged  with  the  enforcement  of  AS  general 
the  laws  the  president  undoubtedly  may  use  the  military  or  naval 
forces  of  the  country.    Numerous  instances  might  be  cited  of 
laws  where  this  right  is  specifically  given,2  but  the  power  rests  take  care 

that  the  laws 

on  the  more  fundamental  duty  of  the  president  to      take  care  be  faithfully 
that  the  laws  be  faithfully  executed."    This  has  already  been  e 

1  12  Wheat.  19,  29,  30. 

2  See  "  Federal  Aid  in  Domestic  Disturbances,"  Senate  'Document  209,  57th 
Cong.,  2d  Sess.,  pp.  5-11. 


190    THE  GOVERNMENT  OF  THE  UNITED  STATES 

discussed  in  the  Neagle  case  *  and  was  reaffirmed  in  In  re  Debs'2' 
in  these  words : 

The  entire  strength  of  the  nation  may  be  used  to  enforce  in  any  part 
of  the  land  tKe  TuUand  free  exercise  of  all  national  powers  and  the 

security  of  all  rights  intrusted  by  the  Constitution  to  its  care If 

the  emergency  arises,  the  army  of  the  nation,  and  all  its  militia,  are  at 
the  service  of  the  nation  to  compel  obedience  to  its  laws. 

President's          In  considering  the  president  as  commander  in  chief,  his  power 
KTtei8V«eCr'-   in  time  of  war  must  be  carefully  distinguished  from  that  which 
cised  m  time   ne   may   exercise   in   time   of   peace.    For  example,  President 
tin^aof°ieance  Roosevelt  ordered  the   marines  detached  from  duty  on  naval 
vessels.    In  the  next  appropriation  bill  Congress  in  granting  the 
money  for  the  support  of  the  Marine  Corps  provided  that  a  cer- 
tain portion  of  it  should  always  be  attached  to  naval  vessels, 
thereby  reversing  the  policy  of  the  president  as  commander  in 
chief.    In  time  of  war  the  power  of  the  president  as  commander 
in  chief   expands  rapidly.    Once  let   Congress  by  act  declare 
war,  and  all  measures  taken  by  the  president  against  the  enemy 
President's     are  within  his  prerogative.    Again  the  nature  of  the  president's 
SUiunsor     power  varies  both  in  kind  and  in  extent  as  it  is  exerted  upon 
soldiers  or  civilians,  and  whether  it  be  in  time  of  peace  or  in 
time  of  war.     In  time  of  peace  the  president  has  practically  no 
power  over  civilians ;  while  in  time  of  war  his  powers  may  be 
greatly  extended.    His  power  over  the  enlisted  forces,  however, 
exists  both  in  time  of  peace  and  in  time  of  war.    This  is  known 
as  military  law,  and  is  derived  from  acts  of  Congress  prescribing 
the  methods  of  governing  and  regulating  the  army  and  navy.3 
President's         Although  the  power  of  the  president  as  commander  in  chief 
t?meeofinpeace  ^n  time  of  war  and  in  time  of  peace  is  granted  by  the  Constitu- 
tion and  has  been  upheld  by  the  courts,  it  has  been  questioned 
in  Congress.    The  latest  instance  was  in  1907,  when  a  resolution 
was  introduced  inquiring  into  President  Roosevelt's  action  in 
discharging  a  company  of  colored  troops  for  riotous  behavior. 
The  resolution  led  to  an  extended  debate,  which  perhaps  reflected 
certain  personal  and  political  prejudices,  but  in  the  course  of 
which  Senator  Spooner  set  forth  what  seems  to  be  the  co: 
view  of  the  president's  power.    He  said  in  part: 

1  See  pp.  178-179.  2  158  U.  S.  564,  582.  »  See  pp.  434-436. 


;e    01 

rrect 


THE  POWERS  OF  THE  PRESIDENT  191 

In  our  system  the  powers  of  government  are  distributed  among  Expounded 
three  branches,  each  coordinate  and  independent  of  the  other,  neither 
of  which  is  responsible  to  the  other  in  any  manner,  except  as  pre- 
scribed by  the  Constitution.  The_  President  is  not  responsible  under 
the  Constitution  to  the  Senate  or  to  the  House  of  Representatives  o7 
to  both.^  .  . 

...  If  a  President,  whether  in  his  capacity  of  Chief  Executive  or 
as  Commander  in  Chief  has  performed  an  act  or  made  an  order  which 
was  within  his  authority  to  make,  I  cannot  see  that  it  is  competent  for 
this  body  or  the  other,  or  both,  to  take  testimony  as  to  the  wisdom  of 
that  executed  act,  upon  which  to  determine  whether  it  will  by  legislative 
act  set  it  aside.  The  Congress,  if  dissatisfied,  may  withdraw  the  power 
or  place  additional  limitations  upon  its  exercise  for  the  future,  but  I  do 
not  see  that  it  can  by  legislation  render  void  the  act.  When  a  power  is 
possessed  by  the  President  or  an  officer  of  the  government  to  do  an  act 
in  a  defined  contingency  or  at  his  discretion,  his  discretion  as  to  the 
existence  of  the  contingency  or  that  circumstances  are  such  as  to 
demand  the  performance  of  the  act  is  conclusive,  and  the  act  cannot 
be  impeached  or  overturned  by  Congress  because  in  its  opinion  the 
exigency  had  not  arisen  or  the  power  was  unwisely  exercised.  The 
general  rule  is  well  stated  by  the  Supreme  Court  in  the  case  of  Martin 
v.  Mott,  12  Wheat.  19,  thus: 

Whenever  a  statute  gives  a  discretionary  power  to  any  person  to  be  exer- 
cised by  him  upon  his  own  opinion  of  certain  facts,  it  is  a  sound  rule  of  con- 
struction that  the  statute  constitutes  him  the  sole  and  exclusive  judge  of  the 
existence  of  those  facts.  .  .  . 

The  Constitution  has  left  entirely  without  definition  the  scope  of  the 
power  of  the  President  as  Commander  in  Chief,  and  the  measure  of 
the  power  was  left  to  be  sought  elsewhere.  I  cannot  agree  that  the  sole 
constitutional  power  of  the  President  is  to  command  the  army  in  time 
of  war  and  conduct  campaigns.  That  his  power  is  vastly  greater  in  time 
of  war  than  in  time  of  peace  has  been  decided,  and  is  not  open  to  dis- 
cussion. .  .  .  But  an  army  and  navy  must  be  commanded  in  time  of 
peace,  as  well  as  in  time  of  war,  else  neither  would  be  fit  for  war.  What 
the  measure  and  scope  of  this  power  is  in  time  of  peace  is  not  neces- 
sary at  this  time  to  discuss.  That  it  is  the  power  to  command,  with  all 
that  is  inherent  in  the  function  and  necessary  to  its  exercise,  cannot  well 
be  disputed,  and  that  whatever  the  power  is  is  conferred  by  the  Consti- 
tution and  cannot  be  interfered  with  by  Congress  will  not  be  denied.1 

1  Congressional  Record,  January  19,  1907  ;  quoted  by  P.  S.  Reinsch,  Readings 
on  American  Federal  Government,  p.  22. 


President's 
control  over 
militia  ex- 
panded by 
acts  of 
Congress 


War  powers 
of  president 
may  be  used 
by  president 
before  Con- 
gress declares 
war 


President  the 
judge  as  to 
whether  an 
insurrection 
has  become  a 
civil  war 


President  as 
commander 
may  make 
war  inevit-  ' 
able 


In  war  presi- 
dent may  use 
all  means  not 
forbidden  by 
the  Constitu- 
tion or  inter- 
national law 


I92    THE  GOVERNMENT  OF  THE  UNITED  STATES 

These  powers  of  the  president  are  applicable  to  all  military 
forces  both  in  peace  and  in  war.  The  president's  control  over  the 
militia,  however,  is  according  to  the  Constitution  to  be  exercised 
only  when  it  is  called  into  active  service.  Nevertheless,  Congress 
by  legislation  in  1903,  1908,  and  1916  vastly  extended  this  power.1 

In  time  of  war  the  power  of  the  president  is  greatly  increased. 
War,  however,  must,  according  to  the  Constitution,  be  declared 
by  Congress.  Nevertheless,  a  civil  insurrection  may  develop  so 
rapidly  that  it  becomes  war  before  Congress  can  act.  In  such 
case  the  president  alone  without  waiting  for  congressional  action 
may  assume  the  prerogative  of  his  office  as  commander  in  chief 
in  time  of  war.  This  actually  happened  in  the  Civil  War  and 
in  the  Prize  Cases  was  sustained  as  follows  : 2 

Whether  the  president  in  fulfilling  his  duties,  as  commander  in  chief, 
in  suppressing  an  insurrection,  has  met  with  such  armed  hostile  resist- 
ance, and  a  civil  war  of  such  alarming  proportions  as  will  compel  him 
to  accord  to  them  the  character  of  belligerents,  is  a  question  to  be 
decided  by  him,  and  this  court  must  be  governed  by  the  decisions  and 
acts  of  the  political  department  of  the  government  to  which  this  power 
was  intrusted. 

So  also  by  his  power  as  commander  in  chief  the  president  may 
actually  take  such  action  that  war  is  inevitable,  and  Congress  can 
do  little  but  recognize  the  condition  which  has  arisen.  When 
war,  however  it  may  arise,  once  exists,  the  power  of  the  president 
as  commander  in  chief  is  far  less  subject  to  control  than  it  is  in 
time  of  peace. 

In  the  prosecution  of  the  war  the  president  may  utilize  all 
means  not  expressly  forbidden  by  Congress  or  international  usag 
to  weaken  the  enemy.  Thus,  to  take  a  most  famous  instance 
the  property  of  the  Confederates  in  their  slaves  was  destroye 
by  the  Emancipation  Proclamation,  itself  an  exercise  of  th 
war  power.  ConstltutioliaTguarantees  do  not  operate  within  th 
enemy's  territory.  Th"e~conquering  power  "  .  .  .  may  do  anythin 
necessary  to^strengthen  itself  and  weaken  the  enemy.  There  i 
no  limit  to  the  powers  that  may  be  exerted  in  such  cases,  sav 
those  which  are  found  in  the  laws  and  usages  of  war."  3  Eve 

1  See  pp.  425-428.  2  2  Black,  635,  670. 

8  New  Orleans  v.  Steamship  Company,  20  Wall.  387,  394.    * 


THE  POWERS  OF  THE  PRESIDENT  193 

the  usage  of  war  may  be  overridden  with  the  assent  of  Congress, 
as  was  shown  by  the  confiscations  made  during  the  Civil  War. 

Military  ^goyernment   may  be    established  by  orders  of  the  Military  gov- 
president,  both  in  hostile  foreign  territory  or  in  hostile  domestic 
territory,  as  a  result  or  necessary  consequent  of  war.    In  time  of 


peace,  also,  military  government  may  be  established  in  foreign  hostile  tem- 

territory  as  a  result  of  international  agreement  ;  but  military  gov-  or  domestic, 

ernment  cannot  be   established  by  direction  of  the  president  ofwa? 

alone  in  domestic  territory  in  time  of  peace.     In  the  first  three 

instances  the  war  powers  of  the  president  may  be  exerted  to 

their  limits.   The  military  officials  acting  upon  instructions  from 

the  commander  in  chief  are  supreme.   The  government  is  a  mili- 

tary government.    Its  acts  are  acts  of  war  reviewable  by  no  court 

or  civil  authority.    In  Dooley  v.  United  States,1  the  court  held, 

with  regard  to  the  government  of  Porto  Rico  by  the  forces  of 

the  United  States,  as  follows  : 

Upon  the  occupation  of  the  country  by  the  military  forces  of  the  Powers  of 
United  States  the  authority  of  the  Spanish  government  was  superseded, 


but  the  necessity  for  a  revenue  did  not  cease.  The  government  must  limited  not 
be  carried  on,  and  there  was  no  one  left  to  administer  its  functions  but  tion  but  by" 
the  military  forces  of  the  United  States.  Money  is  requisite  for  that  international 
purpose,  and  money  could  only  be  raised  by  order  of  the  military  com- 
mander. .  .  .  The  doctrine  upon  this  subject  is  thus  summed  up  by 
Halleck  in  his  work  on  International  Law.  ..."  The  right  of  one  bel- 
ligerent to  occupy  and  govern  the  territory  of  the  enemy  while  in  its 
military  possession  is  one  of  the  incidents  of  war,  and  flows  directly 
from  the  right  to  conquer.  We,  therefore,  do  not  look  to  the  constitu- 
tion, or  political  institutions  of  the  conqueror,  for  authority  to  establish 
a  government  for  the  territory  of  the  enemy  in  his  possession,  during 
its  military  occupation,  nor  for  the  rules  by  which  the  powers  of  such 
government  are  regulated  and  limited.  Such  authority  and  such  rules 
are  derived  directly  from  the  laws  of  war,  as  established  by  the  usages 
of  the  world,  and  confirmed  by  the  writings  of  publicists  and  decision 
of  courts  —  in  fine  from  the  law  of  the  nations.  ..." 

Practically  the  same  power  may  be  exercised  by  the  president 
in  establishing  military  government  in  domestic  territory  in  time 
of  war.  It  was  so  held  in  New  Orleans  -v.  Steamship  Co.  :  2 

1  182  U.  S.  222,  230,  231.  2  20  Wall.  387,  393. 


I94    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Military  Although  the  city  of  New  Orleans  was  conquered  and  taken  pos- 

session of  in  a  civil  war  waged  on  the  part  of  the  United  States  to  put 
down  an  insurrection  and  restore  the  supremacy  of  the  national  gov- 
ernment in  the  Confederate  States,  that  government  had  the  same 

time  of  war  power  and  rights  in  territory  held  by  conquest  as  if  the  territory  had 
belonged  to  a  foreign  country  and  had  been  subjugated  in  a  foreign  war. 

war  powers  It  would  appear,  however,  that  these  rights  cannot  be  exerted 
unless  war  actually  exists.  In  the  case  of  a  foreign  war  this  is 
easy  to  determine,  but  there  are  greater  difficulties  in  the  case 

decide8°wben  of  a  civii  war.    On  this  point  the  Supreme  Court,  in  the  Prize 

a  civil  insur-  .  . 

rection  has      Cases  already  cited,  said  : 

become  a 

civil  war  A  civil  war  is  never  solemnly  declared  ;  it  becomes  such  by  its  acci- 

dents —  the  number,  power,  and  organization  of  the  persons  who  origi- 
nate and  carry  it  on.  ...  It  is  not  less  a  civil  war,  with  belligerent 
parties  in  hostile  array,  because  it  may  be  called  an  "  insurrection  "  by 
one  side,  and  the  insurgents  be  considered  as  rebels  or  traitors. 

Therefore,  since  domestic  insurrections  may  assume  the  char- 
acter of  a  civil  war,  and  without  the  formal  declaration  by  Con- 
gress war  may  exist,  the  president  has  the  power  to  perform 
not  merely  the  acts  necessary  to  the  conduct  of  the  war,  as  has 
been  shown,  but  also  to  establish  military  government  in  such 
domestic  hostile  territory.  It  is  chiefly  in  this  respect  that  his 
power  to  erect  military  rule  in  foreign  territory  differs  from  the 
same  power  to  establish  military  government  in  domestic  terri- 
tory. A  foreign  war  could  hardly  reach  the  stage  where  invasion 
and  occupation  would  necessitate  the  establishment  of  a  gov- 
ernment before  Congress  would  be  called  upon  to  declare  war. 
Domestic  insurrection,  on  the  other  hand,  might  become  a  civil 
war,  and  the  president  in  the  proper  exercise  of  his  discretion 
might  assume  the  powers  exercised  in  time  of  war.  Among  these 
is  properly  found  the  right  to  occupy  and  govern  the  hostile 
territory,  although  the  same  be  domestic  territory  in  which  the 
inhabitants  are  in  revolt. 

eminent  5T"       Militarv  government  may  also  exist  in  time  of  peace  ;  but  in  the 

time  of  peace   establishment  of  this  and  in  its  administration,  the  president  acts 

not  in  the  capacity  of  commander  in  chief  but  as  chief  executive. 

These  governments  in  time  of  peace  are  discussed  in  the  chapters 

on  "  National  Defense  "  and  "  The  Government  of  Territories." 


THE  POWERS  OF  THE  PRESIDENT  195 

THE  PARDONING  POWER 

Among  the  specific  powers  granted  to  the  president  is  the 
power  "  to  grant  reprieves  and  pardons  for  offenses  agajnst  the 
United  States,  except^in  cases  oLJjnpearbment."  It  is  to  be 
noted  that  there  are  two  express  limitations  in  this  grant  and 
that  other  limitations  may  be  deduced  from  the  system  of  the 
separation  of  powers. 

The  first  express  limitation  is  in  cases  of  impeachment.    Here  NO  presiden- 
the  action  of  Congress  is  plenary,  although  the  sentence  is  limited  J JJ1^40 
to  removal  from  office  and  disqualification  from  the  future  hold-  Peachments 
ing  of  office  under  the  United  States.    Presidential  pardons  can- 
not  mitigate   such   sentences.    Impeachment   proceedings   are, 
however,  no  bar  to  further  "  indictment,  trial,  judgment,  and 
punishment,  according  to  law,"  and  for  sentences  'imposed  as 
the  result  of  such   procedure  a  presidential   pardon   might  be 
issued.     Impeachment  proceedings,  however,  are   employed  as 
much  to  remove  an  unfit  man  from  office  as  to  inflict  criminal 
punishment  which  might  be  administered  by  courts  of  law. 

The  other  express  limitation  upon  the  pardoning  power  is  Nopresiden- 
that  it  can  only  be  used  for  offenses  against  the  United  States.  fS^tSfses 
It  therefore  applies  only  to  sentences  which  are  or  may  be  im-  "he  united1 
posed  by  the  federal   courts,  military  courts,  or  courts-martial  states 
dealing  with  subjects  expressly  committed  to  them  by  the  Con- 
stitution or  acts  of  Congress.    Presidential  pardons  cannot  affect 
the  sentence  of  a  state  authority. 

The  implied  limitations  are  due  to  the  theory  of  the  separation  NO  presiden- 
of  powers  found  in  the  Constitution.    The  judicial_and_J£gisla-  f5  contempt 
tive  departments_are  coordinate  with  the  executive  department,  congress°r 
and  cannot  be  interfered  with  by  the  executive  in  the  proper  exer- 
cise of  their  functions.   Thus  both  the  courts  and  Congress  have  * 
power  to  punish  for  contempt,  by  either  fines  or  commitments,  and 
to  gnrlTjtnn i^iments  president  pgr^^g  ^Q™*  apply.1 

Moreover,  Congress  evidently  shares  withtrTe  president  the  congress 
right  to  grant  pardons,  by  act  of  immunity  or  amnesty.  In  Sso?88 
Brown  v.  Walker?  in  upholding  the  act  exempting  persons  amnesty 

1  See  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United   States, 
Vol.  II,  p.  1270. 

2  161  U.  S.  591,  601. 


io6    THE  GOVERNMENT  OF  THE  UNITED  STATES 

t 

from  any  prosecution,  on  account  of  any  transaction  to  which 
they  might  testify  before. the  Interstate  Commerce  Commission, 
the  Supreme  Court  said : 

Although  the  Constitution  vests  in  the  president  "  power  to  grant 
reprieves  and  pardons  for  offenses  against  the  United  States,  except  in 
cases  of  impeachment,"  this  power  has  never  been  held  to  take  from 
Congress  the  power  to  pass  acts  of  general  an&esty,  and  is  ordinarily 
exercised  only  in  cases  of  individuals  after  conviction 

Further,  in  the  same  opinion,  the  court  said  of  amnesty : 

Amnesty  is  defined  by  lexicographers  to  be  an  act  of  the  sovereign 
power  granting  oblivion,  or  a  general  pardon  for  a  past  offense,  and  is 
rarely,  if  ever,  exercised  in  favor  of  single  individuals,  and  is  usually 
pyprred  in  behalf  of  certain  classes  of  persons -who  are  subject  to  trial, 
but  have  not  yet  been  convicted. 

Utilizing  this  power  Congress  has  passed  many  acts  granting 
immunity  or  amnesty,  some  of  the  more  notable  being  those 
passed  at  the  close  of  the  Civil  War  and  those  granting  immu- 
nity to  the  Mormons.    A  possible  consequent  of  this  power  is 
that  a  Congress  containing  a  majority  of  over  two  thirds  hostile 
to  the  president  might,  by  acts  of  amnesty  passed  over  his  veto, 
grant  pardons  in  opposition  to  the  wish  of  the  executive, 
congress  may       Furthermore,  Congress  may  vest  in  some  officer  other  than 
rng^eMn    the  president  the  rightjo.  remit  fkies^fcj&dtoes.  and  penalties 
some  officer     imposed  in  accordance  with  law.  Thus  it  was  said  -in  The  Laura  : 1 

But  is  that  power  exclusive,  in  the  sense  that  no  other  officer  can 
remit  forfeitures  or  penalties  incurred  for  the  violation  of  the  laws  of 
the  United  States  ?  This  question  cannot  be  answered  in  the  affirmative 
without  adjudging  that  the  practice  in  reference  to  remissions  by  the 
Secretary  of  the  Treasury  and  other  officers,  which  has  been  observed 
and  acquiesced  in  for  nearly  a  century,  is  forbidden  by  the  Constitution. 

congress  may  Although  Congress  may  pass  a  general  or  special  amnesty 
pardoning*1*  act  ^n  harmony  with  or  opposed  to  the  wishes  of  the  president, 
the  it  cannot  in  any  way,  by  legislation,  limit  or  condition  his  right 
to  issue  pardons  according  to  his  own  discretion.  This  pardon, 
moreover,  may  be  full  and  complete,  or  partial,  conditioned 

1  114  U.S.  411,  414. 

on 


THE  POWERS  OF  THE  PRESIDENT  197 

upon  the  performance  of  certain  acts.  A  case  of  apparent 
encroachment  upon  the  president's  power  occurred  during  the 
Civil  War.  In  1 862  Congress  passed  an  act  authorizing  the 
president  to  issue  pardons  to  certain  individuals  upon  certain 
conditions.  This  "  suggestion  of  pardon  by  Congress,  for  such 
it  was,"1  was  discussed  in  Lincoln's  annual  message  in  these 
words  :  "  The  Constitution  authorizes  the  executive  to  grant  or 
withhold  the  pardon  at  his  own  absolute  discretion,  and  this 
includes  the  power  to  grant  on  terms,  as  is  fully  established  by 
judicial  and  other  authorities."  2 

President  Lincoln's  view  was  furthermore  upheld  in  the  case 
of  United  States  v.  Kline*  where  the  court  said  : 

It  is  the  intention  of  the  Constitution  that  each  of  the  great  coordinate  separation 
departments  of  the  government  —  the  Legislative,  the  Executive,  and  JJ*kC7execu 
the  Judicial  —  shall  be,  in  its  sphere,  independent  of  the  others.    To  the  tive  and 
Executive  alone  is  intrusted  the  power  of  pardon ;  and  it  Is  granted  independent 
without   limit.    Pardon   includes  amnesty.     It  blots   out   the  offense  °* 
pardoned  and  removes  all  its  penal  consequences. 

Now  it  is  clear  that  the  Legislature  cannot  change  the  effect  of  such 
a  pardon  any  more  than  the  Executive  can  change  a  law.  Yet  this  is 
attempted  by  the  provision  under  consideration.  The  "court  is  required 
to  receive  special  pardons  as  evidence  of  guilt,  and  to  treat  them  as 
null  and  void.  It  is  required  to  disregard  pardons  granted  by  proclama- 
tion on  condition,  though  the  condition  has  been  fulfilled,  and  to  deny 
them  their  legal  effect.  This  certainly  impairs  the  executive  authority, 
and  directs  the  court  to  be  instrumental  to  that  end. 

And  more  briefly  to  the  same  effect  in  Ex parte  Garland:^ 

This  power  of  the  president  is  not  subject  to  legislative  control. 
Congress  can  neither  limit  the  effect  of  his  pardon,  nor  exclude  from 
its  exercise  any  class  of  offenders.  The  benign  prerogative  of  mercy 
reposed  in  him  cannot  be  fettered  by  any  legislative  restrictions. 

*  In  the  same  case  the  effect  of  a  pardon  is  thus  defined : 

A  pardon  reaches  both  the  punishment  prescribed  for  the  offense 
and  the  guilt  of  the  offender ;  and  when  the  pardon  is  full,  it  releases 

1  United  States  v.  Kline,  13  Wall.  128. 

2  Richardson,    Messages    of    the    Presidents,.   Vol.    VI,  p.   189;    Benjamin 
Harrison,   This   Country  of  Ours,  p.  143. 

3  13  Wall.  128,  147,  148.  4  4  Wall.  333,  380. 


198    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Legal  defini- 
tion of  a 
pardon 


President 
may  grant 
conditional 
pardons,  re- 
duce sen- 
tences, and 
grant 
reprieves 


Department 
of  Justice 
advises 
president  as 
to  pardons 


the  punishment  and  blots  out  of  existence  the  guilt,  so  that  in  the  eye 
of  the  law  the  offender  is  as  innocent  as  if  he  had  never  committed  the 
offense.  If  granted  before  conviction,  it  prevents  any  of  the  penalties 
and  disabilities  consequent  upon  conviction  from  attaching ;  if  granted 
after  conviction,  it  removes  the  penalties  and  disabilities  and  restores 
him  to  all  his  civil  rights ;  it  makes  him,  as  it  were,  a  new  man,  and 
gives  him  a  new  credit  and  capacity.1 

While  the  effect  of  a  pardon  is  to  obliterate  the  offense,  ,jt, 
does  not  ^ejatetoimpair  Jhe  rights  of  others :  for  example, 
to  restore  property  the  offender  has  forfeited,  or  to-4^§torejiim 
to-xifii£e.2  Moreover,  while  the  offender  may,  in  the  words  of 
the  court,  be  made  a  "new  man,"  the  pardon  does  not  affect 
the  fact  that  the  offender  has  been  convicted  of  a  crime,  and 
this  fact  may  be  taken  cognizance  of  in  estimating  his  character. 

Since  the  president  has  the  power  to  grant  full  and  uncondi- 
tional pardons,  he  has  the  power  to  grant  conditional  pardons, 
to  reduce  or  commute  sentences,  and  to  grant  reprieves  or  stays 
in  the  execution  of  the  sentence. 

Applications  for  pardons  are  made  either  to  the  Department  of 
Justice  or  directly  to  the  president,  who  refers  them  to  the  depart- 
ment. The  first  step  is  to  consult  the  judge  and  district  attorney 
who  tried  the  case  in  order  to  obtain  from  them  any  statement 
they  may  wish  to  make.  The  pardon  clerk  of  the  Department 
of  Justice  then  makes  up  a  brief  of  the  papers  and  indorses  his 
opinion  upon  them  and  sends  them  to  the  Attorney-General.  He 
in  turn  examines  the  papers,  makes  any  recommendation  he  thinks 
wise,  and  sends  them  to  the  president.  The  president  examines 
the  brief,  may  read  the  record  of  the  case,  and  considers  the* 
recommendations  of  the  other  officials.  His  discretion,  however,  • 
is  absolute.  Unlike  the  executives  in  certain  states,  the  president^ 
is  not  assisted  or  restricted  by  the  action  of  a  council.  When  hi/ 
decision  is  reached  he  indorses  the  papers  "Pardon  granted."  or 
"  Pardonj^fused,"  or  "  Sentence  commuted  to  ...  ,"  and  the 
papers  are  returned  to  the  DepaTttmmToTTultice,  which  notifies 
the  prisoner.  Pardons,  when  granted,  are  issued  by  the  Depart- 
ment of  State  under  the  Great  Seal  of  the  United  States.3 

1  4  Wall.  333,  381. 

2  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  II, 

8  See  Benjamin  Harrison,  This  Country  of  Ours,  p.  147. 


p.  1171. 


THE  POWERS  OF  THE  PRESIDENT  199 

THE  POWER  OF  THE  PRESIDENT  IN  FOREIGN  AFFAIRS 

In  determining  the  foreign  relations  of  the  United  States  the  President  has 
president  is  the  dominating  factor.    His  influence  is  both  posi-  cept^n  formal 
tive  and  negative.   In  every  instance  save  the  passage  of  a  formal  of  w^and 
declaration  of  war  the  initiative  lies  with  the  president;  while  may  oblige 
even  in  the  case  of  a  declaration  of  war  the  president,  through  foiio^nls  ° 
his  veto  power  and  his  power  as  commander  in  chief,  could  check  pohcy 
any  action  which  Congress  might  wish  to  take.     Furthermore, 
although  the  president  is  dependent  upon  Congress  for  the  ful- 
fillment of  a  policy  he  has  initiated,  Congress  is  by  no  means  free 
to  act.     In  most  instances  the  president  may  take  independent 
measures,  which  will  oblige  Congress  to  adopt  his  course.  To  take 
but  a  single  example,  the  president,  through  hisjjower  t£l££f  ng- 
nize  \revolting  colojiies,  may  precipitate  a  war  which  Congress 
could  noTavoMTGreat  as  are  the  powers  granted  to  the  president 
by  the  Constitution,  modernjDolhiccy^md^ 

tend  to  leave  the  exercise  of  these  powers  almost  entirely  to  the 
discretion  of  the  president  unchecked  by  congressional  control. 

The  influence  of  the  president  in  foreign  affairs  comes  from  sources  of 
four  sources :  his  power  as  commander_in  chief  of  jhe  military 
and  naval  forceSy^s  appointingjDowerXhis  power  to  negotiate 
treatieSjjtfnd  the  power  he  exercises  asj:hief  executive  of  the 
UmtecJJjtates  in  enfnrringjjie  laws. 

As  commander  in  chief  he  has  full  power  to  utilize  all  the  (i)  com- 
military  and  naval  forces  of  the  United  States  according  to  his  SSJ*  5  the 
own  discretion.   Thus  the  war  with  Mexico,  declared  by  Congress  *amy  and 
to  have  been  caused  by  Mexico,  was  in  reality  caused  by  the  act 
of  President  Polk  in  sending  troops  of  the  United  States  into 
disputed  territory.    So  also  President  Wilson  in  1913,  1916,  and 
1919  employed  force  against  Mexico  without  a  formal  declaration 
of  war. 

The  power  of  the  appomtment.  of  ambassadors,  ministers,  and  (2)  Appoint- 
consuls  means  Jar  more  than  the  choice  of  proper  m£D_ior  the  ^Idors™" 
diplomatic  service,  4mportant  jisjhat  is.    It  means  a  recognition  [involves  rec- 
of  the  independence  of  a  country.    Since  a  parent  state  is  always 
loath  to  concede  the  independence  of  a  revolting  community,  encei 
premature  recognition  may  be  regarded  as  an  unfriendly  act,  if 


[Reception 
of  ambassa- 
dors] 


(3)  Negotia- 
tion of 
treaties 


(4)  General 

executive 

power 


200    THE  GOVERNMENT  OF  THE  UNITED  STATES 

not  a  positive  intervention  in  the  war.  So,  too,  recognition  of 
a  state  of  belligerency  is  entirely  in  the  hands  of  the  president, 
and  the  possible  problems  arising  must  be  solved  by  Congress, 
which  had  taken  no  part  in  determining  such  a  course. 

Not  only  the  appointment  of  the  ambassadors  of  the  United 
States  but  the  question  of  the  reception  of  ambassadors  from 
other  countries  is  in  the  hands  of  the  president.  With  the  right 
of  reception  goes  the  power  of  dismissal.  This  last  right  has 
been  invoked  several  times,  twice  against  England,  and  most 
recently  against  Germany.  While  the  refusal  to  receive  an 
ambassador  or  the  dismissal  of  an  envoy  does  not  necessarily 
lead  to  war,  it  produces  such  strained  relations  that  war  may 
easily  develop. 

The  Constitution  gives  the  president  the  sole  power  to  nego- 
tiate treaties.  The  initiative  is  his,  and  Congress  cannot  of  itself 
make  a  treaty  without  his  consent.  Thus  it  might  well  happen 
that  in  the  opinion  of  Congress  a  treaty  would  seem  highly  desir- 
able, —  for  example,  a  treaty  to  end  a  war,  —  but  unless  the 
president  thought  it  wise  to  negotiate  and  lay  before  the  Senate 
such  a  treaty,  Congress  could  take  no  action.  Conversely,  the 
Senate  may  refuse  to  concur  in  a  treaty  negotiated  by  the  presi- 
dent. In  fact,  no  treaty  is  legally  binding  unless  two  thirds  of 
the  Senate  accept  the  same.  Hence,  as  a  measure  of  prudence, 
the  president  generally  attempts  to  find  out  the  sentiments  of  the 
Senate  before  entering  into  negotiations. 

As  general  executive  of  the  United  States  the  president  en- 
forces both  the  domestic  laws  of  the  United  States  and  inter- 
national law.  These  systems  affect  both  citizens  and  foreigners. 
The  extent  to  which  the  president  shall  go  in  affording  protec- 
tion to  American  citizens  abroad  and  upon  the  high  seas  is  a 
difficult  question  to  determine,  as  is  also  his  action  concerning 
foreigners  temporarily  domiciled  in  the  United  States.  When 
war  breaks  out  between  two  nations  the  president  usually  issues 
a  proclamation  of  neutrality,  calling  the  attention  of  United  States 
citizens  and  foreigners  resident  here  to  the  existence  of  certain 
statutes  prohibiting  certain  kinds  of  acts.  But  the  enforcement 
»f  these  laws  is  in  the  hands  of  the  president.  He  may  enforce 
them  equally  against  both  belligerents,  or  show  favoritism  to  one, 


THE  POWERS  OF  THE  PRESIDENT  201 

or  display  general  laxity  toward  both.  He  may  thus  subject  the 
United  States  to  claims  for  damages  from  one  or  both  belliger- 
ents or  even  give  excuse  for  reprisals  or  possibly  for  war.1 

Thus,  although  the  power  of  Congress  or  the  Senate  is  nee-  Action  of 
essary  to  perfect  the  action  of  the  president  in  almost  every 
instance,  by  way  of  consenting  to  appointments,  ratification  of 
treaties,  making  of  appropriations,  and  the  passage  of  legisla- 
tion, the  president  possesses  the  initiative  and  is  the  dominating 
factor.  Because  of  this  vast  power  his'  political  influence  is 
greatly  increased.  In  a  war  in  which  the  United  States  is  a 
belligerent  the  power  of  the  president  is  almost  unlimited. 
Although  party  wrangles  may  be  temporarily  silenced,  they  are 
sure  to  break  out  again,  but  with  little  hope  of  success.  Congress 
may  oppose  and  even  pass  hostile  legislation,  but  in  the  conduct 
of  the  war  and  the  settlement  of  forei'gn  affairs  the  president 
can  hardly  be  permanently  thwarted. 

THE  LEGISLATIVE  POWER  OF  THE  PRESIDENT 

In  spite  of  the  theoretical  separation  of  the  departments  of  the 
government,  two  legislative  functions  were  given  to  the  president. 
These  are  the^  qualified^veto_  ancUihe  right  to  recommend  action. 

The  advantage  of  allowing  the  president  to  make  recommen-  The  presi- 
clations  and  to  supply  Congress  with  information  is  obvious.  As 
executive,  the  president  has  at  his  disposal  more  information 
concerning  both  foreign  and  domestic  affairs  than  Congress  can  to  congress 
hope  to  gather.  The  executive  is  in  a  better  position  than  either 
the  legislative  or  judicial  departments  to  know  the  actual  work- 
ing of  the  laws,  to  appreciate  the  needs  of  the  military,  naval, 
and  civil  branches,  to  make  recommendations  concerning  finance, 
and  to  perceive  the  necessities  for  legislation.2  It  was  perhaps 
in  keeping  with  the  ideas  of  the  framers  of  the  original  functions 
of  the  presidency  that,  as  political  leader,  he  should  recommend 
the  adoption  of  the  measures  he  thought  necessary. 

Acting  upon  this  power  the  president  transmits  to  Congress 
many  messages  of  various  characters  at  frequent  intervals.  In 

1  For  a  more  extended  treatment  of  these  subjects  see  p.  559. 

2  J.  Story,  Commentaries  (5th  ed.),  Vol.  II,  p.  382. 


Messages  of 
the  president 
for  the  pur- 
pose of 

(i)  compre- 
hensive 
summary 

(a)  special 
occasions 

(3)  veto 


(4)  arousing 

public 

opinion 


Presidential 
address  as 
compared 
with  presi- 
dential 
message 


202    THE  GOVERNMENT  OF  THE  UNITED  STATES 

the  popular  mind,  however,  the  president's  message  usually 
means  the  long  and  comprehensive  summary  which  the  presi- 
dent sends  to  Congress  at  the  opening  of  each  session.  This  is 
but  one  type  of  message.  Special  messages  concerning  matters 
which  the  president  deems  important  are  frequently  sent,  as  the 
need  arises.  The  disapproval  of  bills  is  transmitted  by  means 
of  messages.  And,  finally,  executive  communications  are  made 
to  Congress,  not  so  much  for  the  purpose  of  giving  information 
or  recommending  legislation,  as  to  arouse  or  solidify  public 
opinion  upon  problems  which  in  some  cases  are  entirely  outside 
of  legislative  action. 

Washington  and  John  Adams  at  the  opening  of  each  session 
of  Congress  addressed  the  House  and  Senate  in  joint  session. 
Jefferson,  however,  abandoned  this  plan,  but  it  was  revived  by 
Wilson  in  1913.  A  presidential  address  has  both  advantages 
and  disadvantages  over  a  written  message  read  by  one  of  the 
clerks  of  Congress.  An  address  emphasizes  the  personality  and 
the  personal  opinions  of  the  speaker  to  a  greater  extent  than  does 
a  message.  It  may  strengthen  the  feeling  of  personal  leadership. 
It  is  generally  comparatively  short  and  thus  makes  a  deeper 
impression  than  the  long,  comprehensive,  written  message.  On 
the  whole  it  attracts  more  attention  throughout  the  country  and 
is  more  likely  to  be  printed  in  full.  On  the  other  hand,  the 
personal  address,  while  perhaps  arousing  enthusiasm,  solidifies 
opposition  and  invites  personal  reply  and  criticism  to  a  greater 
degree  than  a  printed  message,  which  might  be  laid  upon  the 
table  and  referred  to  a  number  of  committees.  In  those  coun- 
tries where  parliamentary  government  exists,  where  the  executive 
is  a  part  of  the  legislature  and  dependent  upon  its  will,  the  execu- 
tive may  properly  utilize  his  personality  to  answer  criticism,  offer 
explanations,  and  persuade  the  legislature  to  adopt  his  proposals. 
In  the  United  States,  however,  where  the  president  holds  office 
independently  of  Congress,  and  where  the  legislature  is  peculiarly 
jealous  of  executive  interference,  there  is  less  justification  for  the 
use  of  personal  influence  and  more  danger  in  attempting  it.  Never- 
theless, President  Wilson  has  undoubtedly  greatly  strengthened 
his  position,  in  both  Congress  and  the  country  at  large,  not  merely 
by  the  character  of  his  messages  but  by  their  delivery  in  person. 


THE  POWERS  OF  THE  PRESIDENT  203 

The  preparation  of  the  message  is  not  the  work  of  the  presi-  Message  not 
dent  alone.    The   long,    printed   documents,   designed  to  give  the  president 
comprehensive  information  of  the  condition  of  the  government,  alone 
were   frequently   compilations    of    the   reports    of    the   various 
departments.    Even   some   of    the   more   specialized   messages 
have  been  claimed  to  be  the  product  in  thought  or  phraseology 
of  others  than  the  president.    Thus  J.  Q.  Adams  is  held  by 
some  to  have  been  the  author  of  the  Monroe  Doctrine,  Livingston 
is  supposed  to  have  phrased  many  of  the  messages  of  Jackson, 
and  Olney  is  claimed  to  have  had  a  large  hand'  in  the  preparation 
of  Cleveland's  famous  Venezuela  message.    The  veto  messages 
are   furthermore    frequently   the   result   of    the   advice   of   the 
department  concerned,  or,  in  cases  of  the  constitutionality  of  a 
bill,  of  the  Attorney-General. 

One  use  of  the  message  of  the  president  is  becoming  increas-  Public  as  con- 
ingly  important :  that  is,  the  public  as  contrasted  with  the  legis- 
lative  purpose.  Foreign  countries  might  properly  take  exception 
to  legislative  action,  but  no  just  criticism  can  be  made  of  the 
president's  discussion  of  any  matter  with  Congress.  Thus  (i)  in  foreign 
Monroe,  in  a  manner  beyond  all  criticism,  served  notice  upon  * 

'  <  [The  Monroe 

both   Russia  and  Spam  that  the  Amer-icas  were   not  open  to  Doctrine] 
further  colonization.    While  the  Venezuela  message  of  President  [The 
Cleveland,  although  arousing  criticism  as  to  its  advisability,  was  message] 
unexceptionable  from  a  diplomatic  point  of  view,  and   accom- 
plished what  diplomatic  protests  had  failed  to  obtain.    In  like 
manner,  before  the   United   States  entered  the  war,  President  [Wilson's 
Wilson  informed  both  the  belligerents  and  his  countrymen  of  Sf^Jle 
the  position  and  policy  of  the  United  States,  and  by  his  speeches  World  WarJ 
brought  about  a  somewhat  clearer  definition  of  the  aims  of  the 
war  and  the  policies  to  be  pursued  when  peace  should  be  estab- 
lished.   So,  too,  he  was  tacitly  accepted  as  the  spokesman  of  the 
Allies,  and  by  his  address  of  January  2,  1918,  laid  down  condi- 
tions upon  which  the  Allies  were  supposed  to  be  willing  to  con- 
clude peace.     In  domestic  affairs  the  message  of  the  president  (2)  in  domes- 
is  often  of  great  importance.    It  advertises  to  the  country  his 
position  and  his  policies.    Although  these  are  not  always  the 
policies  of  Congress,  the  general  public  is  more  inclined  to  pay 
attention  to  the  declaration  of  the  president  than  to  the  utterances 


The  veto 
power 


The  presi- 
dent's veto 
not  absolute 


Exception  in 
case  of  the 
"pocket 
veto ' ' 


204    THE  GOVERNMENT  OF  THE  UNITED  STATES 

of  local  politicians.  With  this  power,  the  president  can  at  times 
arouse  public  opinion  to  such  an  extent  that  he  can  compel 
Congress  unwillingly  to  do  his  will.  While  president,  Roosevelt 
utilized  his  messages  to  arouse  the  moral  sentiment  of  the  country 
upon  questions  which  were  sometimes  entirely  outside  the  sphere 
of  congressional  legislation. 

The  president's  qualified  veto  came  directly  from  a  similar  power 
possessed  by  the  colonial  governors.  In  England,  while  the  Crown 
may  in  theory  retain  this  right,  it  has  been  lost  by  custom  through 
the  development  of  the  cabinet  system.  Not  since  1707  has  an 
English  sovereign  refused  to  assent  to  an  act  of  Parliament.  It 
is  far  otherwise  in  the  United  States,  where,  instead  of  criticism, 
popular  approval  has  followed  the  increasing  use  of  this  power. 

It  is  to  be  noticed  that  the  veto  of  the  president  is  not  an 
absolute  one.  According  to  the  Constitution  he  may  at  any  time 
within  ten  days  return  a  bill  which  does  not  meet  his  approval, 
stating  the  grounds  for  withholding  his  assent.  Should  both 
Houses  repass  the  bill  by  a  yea-and-nay  vote  by  a  majority  of 
two  thirds,  the  act  becomes  a  law  without  the  signature  of  the 
president.  If  the  president  neither  signs  Jhe  bill  nor  returns 
it  within  ten  days^with  jus  objections,  it  becomes  a  Iaw~as  if  he 
hacTsign^ed  it.  But  all  legislation  passed  during  the  last  ferTdays 
before  the  expiration  of  Congress  is  open  to  the  absolute  veto  of 
the  president.  This  is  because  the  president  may  withhold  his 
veto  until  Congress  has  adjourned  and  the  opportunity  to  over- 
ride his  objections  has  been  lost.  This  "  pocket  veto,"  as  it  is 
called,  has  been  criticized.  It  is  evident  that  it  gives  the  presi- 
dent the  opportunity  to  thwart  the  wishes  of  the  legislature  ex- 
pressed in  an  even  more  emphatic  manner  than  the  two-thirds 
vote  necessary  to  overcome  the  objections  of  the  president.  On 
the  other  hand,  it  serves  as  a  check  upon  hasty  and  ill-considered 
legislation  which  might  be  hurried  through  in  the  press  of  busi- 
ness on  the  last  days  of  Congress.  On  the  whole  it  has  not  been 
abused ;  nor  has  it  been  used  to  a  very  great  extent  except  in 
the  administration  of  Johnson,  when  the  president  and  Congress 
were  at  odds  over  the  problems  of  reconstruction. 

The  veto  was  designed,  according  to  "  The  Federalist,"  first,  to 
protect  the  executive  power  from  encroachment  by  Congress,  and 


THE  POWERS  OF  THE  PRESIDENT  205 

second,  to  prevent  ill-advised  and  hasty  legislation.     Down  to  original  pur- 
1860  the  vetoes,  less  than  fifty  in  number,  were  generally  upon  foSprotectt0 


constitutional  grounds,  although  from  the  administration  of  Jack- 

son,  vetoes  because  of  expediency  were  not  uncommon.    But  legislation 

the  executive,  except  in  the  days  of  the  reconstruction  controversy, 

seldom  needed  protection.    The  Civil  War  settled  many  consti- 

tutional questions  and  gave  the  government  many  powers  which 

were  formerly  in  dispute.    With  this  constitutional  change  the 

use  of  the  veto  was  also  changed.    It  is  now  generally  conceded  Present  use 

that  the   president  vetoes  a  measure  which   he  thinks   objec- 

tionable either  in,  principle  or  jprobable  results.     Questions  of 

constitutionality  are  secondary  tothose  ojLejLpedkncv. 

The  veto  has  not  been  used  frequently,  considering  the  mul-  veto  not  used 
titude  of  bills  presented  to  the  president.  Down  to  1889  out  of 
22,650  bills,  acts,  and  joint  resolutions  which  Congress  had  pre- 
sented since  the  organization  of  the  government,  the  president 
had  signed  21,759  an^  vetoed  43  3.  l  Of  these,  Cleveland  alone 
vetoed  over  half,  chiefly  private  pension  bills.  Congress  has 
passed  thirty-two  bills  over  the  president's  veto,'  fifteen  of  which 
were  in  the  administration  of  Johnson.  Seven  presidents2  did 
not  use  the  veto.  To  date,  the  veto  power  has  probably  been 
used  less  than  six  hundred  times. 

The  use  of  the  veto  has  generally  met  with  approval.    The  Bins  seldom 
president  has  frequently  better  interpreted  the  public  demand  president" 
than  has  Congress,  and  the  people  have  occasionally  welcomed  vet< 
protection  from  their  own  elected  representatives.    It  has  limited 
to  some  extent  unwise  extravagance  and  has  prevented  the  pas- 
sage of  some  legislation  which  from  its  character  might  never 
be  tested  in  the  courts.    It  has  been  .used  with  discretion  by  the 
president,  as  is  shown  by  the  fact  that  only  rarely  has  Congress 
succeeded  in  overriding  the  president's  objections.3 

1  E.  C.  Mason,  The  Veto  Power,  Appendix  D.     See  also  J.  H.  Finley  and 
J.  F.  Sanderson,  The  American  Executive  and  Executive  Methods,  pp.  72-81, 
206-217  5  C.  A.  Beard,  American  Government  and  Politics,  pp.  201-204. 

2  John  Adams,  Jefferson,  J.  Q.  Adams,  William  H.  Harrison,  Taylor,  Fillmore, 
and  Garfield. 

3  The  first  instance  occurred  in  Tyler's  administration  ;  Pierce  was  reversed 
5  times;  Johnson,  15;  Grant,  4;  Hayes,  i  ;  Arthur,  i  ;  Cleveland,  2;  Taft,  2; 
Wilson,  2.  —  E.  C.  Mason,  The  Veto  Power,  Appendix  D 


206    THE  GOVERNMENT  OF  THE  UNITED  STATES 

In  recent  administrations  presidents,  by  letting  Congress  know 
that  they  would  veto  an  act  unless  altered  to  their  satisfaction, 
have  succeeded  in  writing  their  ideas  into  legislation  in  ways 
perhaps  not  contemplated  by  the  Constitution.  But  this  is  only 
an  illustration  of  the  changed  position  of  the  executive  and  an 
example  of  his  position  as  the  leader  of  his  party. 


CHAPTER  IX 

THE  ADMINISTRATION 

THE  PRESIDENT'S  CABINET  1 

Technically,  the  term  "the  administration"  in  American  gov-  The  cabinet 
ernment  includes  the  president  and  the  heads  of  the  departments  Sates  unlike 
comprised  in  the  informal  body  known  as  the  cabinet.  The  mean-  *JJf£gni8h 
ing  of  the  term  "  cabinet"  in  the  United  States  differs  from  that  cabinets 
in  other  countries.  In  England,  France,  and  the  self-governing 
colonies  of  Great  Britain  the  cabinet  is  a  body^o^  officials,  nomi- 
nally  appointed  Jjy__the  head  of  the  State,  but  actually__regponsible 
to  and  holding__£ffice  by  the  consent*  of  the  legislature.  Like 
cabinets  in  other  countries  IhlT  cabinet  in  the  United  States  is 
composed  of  holders  of  offices  which  are  created  by  the  legisla- 
ture. These  officers  are  also  appointed  by  the  president.  But 
unlike  trie  cabinets  of  all  other  countries  the  cabinet  officers  in 
the  United  States  have  no  political  responsibility  to  the  legisla- 
ture. They  are  not  even  indirectly  chosen  by  it,  and,  save  in  so 
far  as  the  Senate  consents  to  the  nominations  of  the  president, 
they  haye  no  responsibility  to  the  legislature  but  are  solely  respon- 
sible for  all  their  discretionary  acts  to  the  president.  Although 
the  theory  of  the  separation  of  departments  is  held  in  other  coun- 
tries, the  parliamentary  system,  by  which  a  cabinet,  controlled 
by  the  legislature,  directs  and  performs  all  executive  acts,  has 
resulted  in  the  supremacy  of  the  legislature.  This  is  not  so  in 
the  United  States.  The  cabinet  in  the  United  States  is  not  a 
cabinet  in  the  European  parliamentary  sense,  but  merely  a  group 
of  officials  subordinate  to  the  chief  executive,  who  is  charged 
with  executing  the  laws  of  the  United  States.  Congress  can  by 
legislation  control  and  decide  what  shall  be  done,  but  not  how  it 
shall  be  done  —  that  is  the  essence  of  the  discretionary  or  political 
power  of  the  executive,  over  which' Congress  has  no  control. 

1  See  H.  B.  Learned,  The  President's  Cabinet ;  M.  L.  Hinsdale,  A  History 
of  the  President's  Cabinet. 

207 


Origin  of  the 
cabinet  in  the 
United  States 


Constitu- 
tional provi- 
sions for  the 
formation  of 
the  cabinet 


Growth  of 
departments 


208    THE  GOVERNMENT  OF  THE  UNITED  STATES 

In  the  convention  of  1787  it  was  several  times  proposed  that 
the  president  should  be  given  a  council  analogous  to  the  Privy 
Council  in  England;  but  these  suggestions  were  fortunately 
abandoned.  Nevertheless,  in  the  Constitution  as  it  came  from 
the  framers  there  were  two  points  from  which  such  an  advisory 
council  might  have  developed.  The  first  was  the  Senate,  which 
with  the  president  shared  the  executive  power  in  making  treaties 
and  confirming  appointments.  But  the  early  experience  of 
Washington  and  the  difficulties  he  encountered  in  dealing  with 
that  body  checked  the  development  along  that  line.  A  second 
and  more  likely  element  from  which  an  advisory  council  might 
have  developed  was  the  heads  of  the  executive  departments. 
As  has  been  shown,  the  power  to  create  such  departments  was 
given  to  Congress,  and  thejiecessjty^  of  those  close_relations  to 
the  presjdejitjva^j^ 

require  their  opinions.  But  it  was  leTFentirely  to  his  discretion 
ajfToTrleF  fonrTthese  relations  should  take,  whether  by  formal 
reports,  or  whether  the  heads  of  the  departments  should  sus- 
tain more  intimate  relations  to  their  chief.  The  cabinet  as  coun- 
cil, that  is,  as  a  body  of  intimate,  trusted  political  advisers,  was 
not  established  by  the  Constitution,  but  owes  its  existence  to 
unwritten  law  and  custom.1 

The  constitutional  provisions  for  the  powers  from  which  the 
cabinet  has  developed  are  found  in  the  general  grantof  the 
execAitivejDOwer  to  the  president,2  and  the  power  expressly  granted 
to  hirnJuxcoflSUlLthe  TJeadsofthe  executive~departments  :3  while 
the  fact  that  such  departments  are  to  be  created  is  implied  from 
the  last  quoted  clause  and  also  from  the  power  given  to  Congress 
to  make  all  laws  necessary  and  proper  to  carry  out  the  powers 
vested  by  the  Constitution  in  the  government  of  the  United 
States  or  in  any  department  or  officer  thereof.4 

Acting  on  this  authority,  Congress,  at  its  first  session  in  1789, 
passed  statutes  creating  three  executive  departments  :  the  De- 
partment of  Foreign^Affairs  (which  was  soon  to  become  the 
Department  of  State),  the  Department  of  War,  and  the  Treasury 

1  M.  L.  Hinsdale,  A  History  of  the  President's  Cabinet,  pp.  7-8. 

2  The  Constitution  of  the  United  States,  Article  II,  Sect.  i. 

8  Ibid.  Article  II,  Sect,  ii,  clause  i.       *  Ibid.  Article  I,  Sect,  vii,  clause  18. 


THE-  ADMINISTRATION  209 

Department.  A  little  later  it  created  the  office  of  Attorney- 
General,  which  was  organized  as  the  Department  of  Justice  in 
1870.  This  process  of  congressional  creation  and  division  has 
continued  until  to-day  there  are  ten  principal  departments. 

The  chief  officers  of  the  three  earliest  departments,  together  Heads  of 
with  the  Attorney-General,  were  consulted  by  Washington,  and  in  beSmeSe*8 
1793  were  known  unofficially  as  the  cabinet,  a  title  which  was  not  cabinet 
recognized  by  law  until  I9O7.1     The  precedent  established  by 
Washington  has  been  followed  ever  since,  with  the  exception  of  a 
short  period  during  the  administration  of  Jackson,  when  he  con- 
sulted other  advisers  than  the  heads  of  the  departments.  In  recent 
years  cabinet  meetings  have  been  held  twice  a  week,  on  Tuesday 
and  Friday,  which  are  known  in  Washington  as  "  Cabinet  Days."  2 

The  principles  governing  the  selection  of  the  cabinet  reflect  Members  of 
the  dual  position  of  that  body.    The  officials  must  be  able  to  f  ^party  of 


administer  the  affairs  of  the  departments  over  which  they  pre- 

side  ;    but  they  must  also  be  suitable  advisers  for  the  president 

in  the  important  policies  of  his  administration.     The  first  prin- 

ciple which  has  been  followed  ever  since  Washington's  second 

administration  is  that  the  cabinet^jofficers  must  com^from  the 

same  political  party.    The  blurring  of  party  lines,  or  the  disinte- 

gration of  parties,  has  produced  a  few  exceptions,  notably  in  the  Exceptions 

administrations  of  Monroe,  Tyler,  and  Lincoln,  and  certain  cases 

of  independence  of  party  allegiance   have  accounted  for  some 

individual  appointments.     The  appointment  of  Gresham  as  Sec- 

retary of  State  in  1893,  after  he  had  been  a  member  of  Arthur's 

cabinet  and  a  strong  candidate  for  the  Republican  nomination 

in  1888,  is  the  most  remarkable  instance.    In  recent  years,  how- 

ever, the  claim  of  the  Republican  party  to  be  a  truly  national  one 

led  both  President  Roosevelt  and  President  Taft  to  include  in 

their  cabinets  Southern  Democrats  for  brief  periods. 

1  H.  B.  Learned,  The  President's  Cabinet,  pp.  157-158. 

2  Twice  during  the,  administrations  of  President  Wilson  it  has  been  reported 
hat  the  formal   cabinet  meetings  were   discontinued.    This  was  probably  for 

~r  reasons  than  those  which  actuated  Jackson,  for  there  is  little  evidence 

^resident  Wilson  has  preferred  other  advisers  to  the  heads  of  departments, 

he  has  freely  consulted  a  large  number  of  unofficial  advisers.    It  is 

^ble  that  the  complications  of  the  war  could  best  be  handled  by  private 

vith  the  heads  of  the  departments  concerned. 


selection 


political 


210    THE  GOVERNMENT  OF  THE  UNITED  STATES 

sections  of  A  second  principle  usually  followed  is  a  geographical  one.  It 
has  been  held  advisable  to  give  recognition  to  alTsections  of  the 
country.  Thus,  President  Wilson's  original  cabinet  contained 
members  from  eight  different  states,  but  in  making  these  appoint- 
ments he  violated  another  principle  formerly  insisted  upon; 
namely,  that  no  state  should  have  more  than  one  member.  This 
was  first  most  clearly  violated  by  President  Cleveland,  who  made 
two  appointments  from  New  York,  which  also  furnished  the 
president.  Since  1884  there  have  been  other  cases  of  double 
appointments  from  the  same  state,  and  President  Wilson's  first 
cabinet  contained  three  secretaries  from  New  York,  a  fact  which 
caused  some  unfavorable  comment. 

Three  other  motives  for  choice  seem  to  be  operative  at  pres- 
ent.    The  most  obvious  one  is  the  necessity  of  gaining  political 
SUppOrt  and  strength  for  the_adcai»istration.    A  striking  instance 
was  President  Wilson's  appointment  of  Mr.  Bryan  as  Secretary 
of  State,  thereby  winning  for  the  administration  the  support  of 
the  more  radical  wing  of  the  Democratic  partyf^Personal  friend- 
ship frequently  plays  a  great  part  in  some  appointments.    For 
example,  President  McKinley  appointed  his  friend  and  neighbor, 
W.  R.  Day,  Secretary  of  State,  a  choice  which  proved  a  not  un- 
hap^v  one.    Perhaps  also  the  promotion  of  Mr.  Cortelyou  from 
th'    ..coition  of  secretary  to  the  president  to  secretary  of  the 
icnts  of  Labor  and  Commerce,  Post  Office,  and  Treasury 
--elt  was  of  the  same  sort,  although  in  this 
*.  aqj  testfedjjc-litical  capacity  were  doubtless  the 

'  m< 

ministration  ^^ 


friendship 


the  attempt  to  <  'i-vinguished  for  _  their  skill  in 

administering  ku<v  ess  Interests.    Harrison's 

appointment  of  Wana.  a  point,  although  the  idea 

of  rewarding  a  successful  campai  ^ave  been 

absent.    Clearer  cases  are  seen  ointment  of  Root  * 

reorganize  the  War  Department,  and  Lyman 
of  the  Treasury  by  McKinley,  while  succu 
istration  is  recognized  by  President  Wilson,  himself  a 
president,  in  the  appointment  of  Secretary  Hous* 
been  the  successful  president  of  three  institute 


ADMINISTRATION  2  ] 

The  relatic  i  >et  to  the  president  Jias  varied.    Di 

ing  the  administrate  Jackson  the  presidential  power  w 

almost  mib'  ary  and  the  secretaries  were  treated  like  orderlk 
while  durh  ast  months  of  Buchanan's  administration  tl 

president;,  Tiay  be  said  to  have  been  in  commissioi 

Betweer  -reines  the  more    normal  status  is  foun 

Legalb  ;-  of  the  secretaries  to  the  president  are  w< 

stated 

Wha-  j  cabinet  is,  therefore,  a  purely .-yftUjntary,  ext 

legr  r  the  heads  of  the  executive  departments  with  t 

pres  h  may  be  dispensed  with  at  any  moment  by  the  pre 

dent.  :  I  resolutions  do  not  legally  bind  the  president  in  t 

They  form  a  privy  council  but  not  a  ministry.2 

this  correctly  states  the  legal  and  theoretical  position  ai 
Jie  cabinet  to  the  president,  political  consideratioi 
,ja£-pubIuL  business,  and  precedent  greatly  strength 
jiiijt's  position  and  .influence. 

meetings  are  most  informal,  resembling  the  discussio 

Js  of  directors.    No  minutes  are  preserved  and  seldom 

£  a  formal  vote  taken.    Nevertheless,  the  subjects  of  the  d 

sion  are  of  vital  importance,  not  merely  to  the  departmei 

t  to  the  legislative  program  with  which  Congress  is  dealir 

i  for  the  political  position  and  influence  of  the  administratic 

is  the  custom  for  each  secretary  to  consult  with  the  preside 

Before  introducing  measures  at  a  cabinet  meeting  and  to  foll< 

the  president's  suggestion.    No  policy  could  be  adopted  withe 

vhe  approval  of  the  president.    Nevertheless,  there  is  probabl} 

free  interchange  of  opinion,  and  either  in  the  cabinet  meeting 

in  private  discussion  compromises  are  arranged.     While  ea 

secretary  is  responsible  for  the  administration  of  his  departme 

questions  involving  important  changes  of  policy  are  almost 

variably  presented  to  the  president  and  often  for  discussion  at  t 

cabinet  meeting.    Even  the  routine  administration  of  the  depc 

ment  may  sometimes  produce  a  political  crisis  which  necessita 

presidential  interference  or  cabinet  consultation.3 

1  M.  L.  Hinsdale,  A  History  of  the  President's  Cabinet,  pp.  333,  334. 


212    THE  GOVERN 

*"  At  the  meetings  the  'sed 

before  it  is  presented  to  Congn  is 

prepared.    In  this  particula  ^s 

departing  from  the  strictly  legal  fun 

and  beginning  to  resemble  the 

Such  action,  however,  is  entirely 

original  conception  of  the  duties  of  th< 

but  finds  its  justification   frc 

directed  to  .recommend  measures  to 

and  is  vested  with  the  power  i 

so  much  as  heads  of  executive  departme: 

visers  of  the  president,  is  therefor 

tive  policies  into  consideration. 

please  Congress,  and  the  fact  that  < 

tions  bills   have  been  frequently  prepai 

and  presented  after  discussion  in  the  uihir-.e?  1  --as  been  r 

by  Congress  as  executive  interference  with  t  ;  fund 

of  the  legislature. 

But  cabinet  meetings  serve  another  purpo: 
shown,  the  cabinet  officers  are  sometimes  ch 
political  influence.    As  politicians  they  keep       *  presic 
formed  concerning  the  public  opinion  of  the 
leaders  of  local  if  not  national  importance  the; 
and  justify  the  policy  of  the  administration  through  spei 
various  parts  of  the  country.    And  in  their  relation 
their  political  influence  is  often  invaluable  in  b' : 
to  bear  upon  recalcitrant  members  of  the  party 
the  legislative  program  of  the  administration. 

The  importance  of  the  cabinet  as  a  council  has  increased,  bi 
there  has  been  little  development  of  its  functions.   T 
members  are  still  subordinate  officials  chosen  by  th 
carry  out  his  policies,  and  are  still  responsible  to  f 
influence  with  Congress  still  depends  upon  the  politi 
of  the  administration  exerted  in  an  entirely  extra-legi 
no  steps  have  been  taken  to  develop  their  functions  int 
responsible  ministries  of  foreign  countries. 


THE  ADMINISTRATION  213 

THE  POWER  OF  THE  PRESIDENT  TO  DIRECT  ACTION 

The  members  of  the  cabinet  occupy  a  dual  position.   They  are  Dual  position 
officers  of  the  United  States  having  specific  duties  to  perform,  Jjj  ^Set^ 
which  are  minutely  defined  by  the  statutes  creating  the  offices 
they  occupy.    They  are  also  confidential  subordinates  of  the  presi- 
dent.   As  has  been  shown,  the  heads  of  the  departments  are 
appointed  by  the  president  with  the  advice  and  consent  of  the 
Senate,  and  are  removable  only  by  the  president  except  in  case 
of  impeachment.    At  the  same  time  it  must  be  remembered  that 
like  the-  president  they  are  officers  of  the  United   States  and 
possess  very  definite  duties  and  powers. 

Their  theoretical  position  was  thus  stated  by  the  Supreme 
Court  in   1838  : 

There  are  certain  political  duties  imposed  upon  many  officers  in  the  Position  as 
executive  department,  the  discharge  of  which  is  under  the  direction  of 


the  president.  But  it  would  be  an  alarming  doctrine  that  Congress  can- 
not impose  upon  any  executive  officer  any  duty  they  may  think  proper, 
which  is  not  repugnant  to  any  rights  secured  and  protected  by  the  Con- 
stitution ;  and  in  such  cases,  the  duty  and  responsibility  are  subject  to 
the  control  of  the  law,  and  not  'to  the  direction  of  the  president.  And 
this  is  emphatically  the  case,  where  the  duty  enjoined  is  of  a  mere 
ministerjifcH^rRwa.cter.1 

Nearly  a  generation   later  John  Sherman,  himself  a  former  position  as 
Secretary  of  the  Treasury,  thus  stated  the  power  of  the  president 
to  direct  and  control  the  actions  of  his  subordinates  : 

The  president  is  intrusted  by  the  Constitution  and  the  laws  with  im- 
portant powers,  and  so  by  law  are  the  heads  of  departments.  The 
president  has  no  more  right  to  control  or  exercise  the  powers  conferred 
by  law  upon  them  than  they  have  to  control  him  in  the  discharge  of  his 
duties.  It  is  especially  the  custom  of  Congress  to  intrust  to  the  Secre- 
tary of  the  Treasury  specific  powers  over  the  currency,  the  public  debt, 
and  the  collection  of  the  revenue.  If  he  violates  or  neglects  his  duty  he 
is  subject  to  removal  by  the  president,  or  impeachment  by  the  House 
of  Representatives,  but  the  president  cannot  exercise  or  control  the  dis- 
cretion reposed  in  the  Secretary  of  the  Treasury,  or  in  any  head  or 
subordinate  of  any  department  of  the  government.2 

1  Kendall  v.  United  States,  12  Peters,  524,  610. 

2  John  Sherman,  Recollections,  Vol.  I,  p.  449. 


In  actual 
practice 
president 
through 
power  of  re- 
moval may 
direct  action 
of  all  cabinet 
officers 


Technically 
two  classes 
of  cabinet 
officers 


Practically 
both  subject 
to  direction 
of  president 


2I4    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Although  the  opinion  of  the  court  and  the  logical  argument 
of  Mr.  Sherman  set  forth  the  legal  theory,  the  practice  of  the 
government  has  been  far  different.  As  has  been  shown,  the 
president  possesses  the  power  of  appointment  and  removal  of 
all  officers  except  the  judges.  Although  this  power  of  removal 
has  been  technically  and  formally  invoked  against  cabinet  offi- 
cers only  twice,1  yet  resignations,  transfers,  and  promotions 
have  accomplished  the  same  result.  In  fact,  at  the  very  time 
when  the  court  was  asserting  the  inability  of  a  president  to  direct 
the  head  of  a  department,  President  Jackson  by  a  series  of  re- 
movals was  vindicating  his  right  to  impose  his  policy  upon  the 
Secretary  of  the  Treasury.  Although  the  Senate  refused  to  con- 
firm the  appointment  of  Taney  (the  secretary  who  finally  carried 
out  Jackson's  policy)  and  passed  a  vote  of  censure  upon  the 
president,  yet  the  success  of  the  president  so  clearly  showed  his 
resources  that  his  power  has  never  since  been  questioned.  So 
clearly  was  this  recognized  that  Congress,  in  order  to  insure 
the  sympathetic  administration  of  its  reconstruction  policy,  passed 
the  Tenure  of  Office  Act  to  prevent  the  removal  of  Stanton 
and  the  appointment  of  someone  else  more  compliant  with  the 
directions  of  the  president.  The  speedy  amendment  and  final 
repeal  of  the  act  have  now  restored  the  president  to  the  position 
he  formerly  occupied. 

The  members  of  the  cabinet  are  sometimes  divided  into  two 
classes,  a  division  based  upon  the  relation  to  Congress  shown  in 
the  acts  which  create  their  offices.  The  Treasury  and  Post-Office 
Departments  were  organized  without  reference  to  presidential 
cental,  and  their  heads^repoTTTo  Congress  directly.  Tn  the  De- 
partments of  StateT\Var,  and  Navy  the^power  of  presidential 
direction  is  recognized,  and  it  is  implied  in  the  other  depart- 
ments. Certain  secretaries  of  the  Treasury  and  some  writers 
have  professed  to  see  in  this  difference  a  wider  measure  of 
independence  of  presidential  control  for  the  Secretary  of  the 
Treasury  and  the  Postmaster- General  than  exists  for  the  other 
officials.  Although  this  may  be  technically  true,  practically  there 
has  never  been  any  difference  as  to  the  power  of  the  president 
to  enforce  his  will  upon  any  of  the  heads  of  the  departments, 

1  M.  L.  Hinsdale,  A  History  of  the  President's  Cabinet,  p.  223. 


THE  ADMINISTRATION  215 

and  it  is  significant  that  the  triumph  of  Jackson  came  at  the 
expense  of  a  Secretary  of  the  Treasury. 

Each  cabinet  official  occupies  a  dual  position  and  performs  TWO  classes 
two  kinds  of  duties:  Oi\e_class  which  may  bejcalled  political, is 
absolutely  underj:jie_direction  of  the  president,  and  there  is  no 
powef^TrncrTcan  interfere  with  such  actionsV  But  there  are  other 
acts,  duties  which  are  prescribed  by  statute  and  known  as  ad- 
ministrative  or  ministerial  acts,  of  which  the  courts  will  take 
judicial  notice  and  may  compel  action.  In  the  great  decision  of 
the  Marbury  case,  Marshall  laid  down  the  clear  distinction  be- 
tween these  classes  which  has  been  followed  ever  since.  At 
the  close  of  the  administration  of  John  Adams  certain  commis- 
sions which  were  already  signed  had  not  been  delivered.  Wil- 
liam Marbury.  to  whom  a  commission  for  a  justiceship  in  the 
District  of  Columbia  had  been  issued,  attempted,  by  a  writ  of 
mandamus,  to  compel  the  Secretary  of  State,  Madison,  to  deliver 
the  commission  which  was  withheld  at  the  direction  of  President 
Jefferson.  A  clearer  case  of  conflict  could  hardly  be  imagined, 
for  of  all  the  cabinet  officers  the  Secretary  of  State  has  the 
closest  relation  to  the  president  and  is  most  subject  to  his  con- 
trol. Was  the  delivery  of  the  commission  a  discretionary  and 
political  duty  or  purely  an  administrative  and  ministerial  one, 
not  subject  to  the  direction  of  the  president?  Although  the  writ 
was  not  granted  for  want  of  jurisdiction,  yet  Marshall  in  an 
obiter  dictum  held  that  the  contention  was  a  proper  one  which 
might  be  upheld  in  a  proper  court.  His  reasoning  is  as  follows  : 

By  the  Constitution  of  the  United  States,  the  president  is  invested  in  political  or 
with  certain  important  political  powers,  in  the  exercise  of  which  he  is 
to  use  his  own  discretion,  and  is  accountable  only  to  his  country  in  his 
political  character,  and  to  his  own  conscience.    To  aid  him  in  the  per-  js  conclusive 
formance  of  these  duties,  he  is  authorized  to  appoint  certain  officers, 
who  act  by  his  authority,  and  in  conformity  with  his  orders. 

In  such  cases,  their  acts  are  his  acts ;  and  whatever  opinion  may  be 
entertained  of  the  manner  in  which  executive  discretion  may  be  used, 
still  there  exists,  and  can  exist,  no  power  to  control  that  discretion. 
The  subjects  are  Apolitical.  They  respect  the  nation,  notjn^idual 
rights,  and  being  intrusted  tojheexecutive,  the  decision  of  the  executive 
is  conclusive.  . 


216    THE  GOVERNMENT  OF  THE  UNITED  STATES 


For  ministe- 
rial acts  the 
executive  is 
responsible 
at  law 


Discretionary 
acts  examin- 
able  only 
politically 


Ministerial 
acts  examin- 
able  by  the 
courts 


Power  of 
president 
may  force  a 
dilemma 


But  when  the  legislature  proceeds  to  impose  on  that  officer  [the 
Secretary  of  State]  other  duties ;  when  he  is  directed  peremptorily  to 
perform  certain  acts ;  when  the  rights  of  individuals  are  dependent  on 
the  performance  of  those  acts ;  he  is  so  far  the  officer  of  the  law ;  is 
amenable  to  the  laws  for  his  conduct;  and  cannot  at  his  discretion 
sport  away  the  vested  rights  of  others. 

The  conclusion  from  this  reasoning  is  that  where  the  heads  of  de- 
partments are  the  political  or  confidential  agents  of  the  executive, 
merely  to  execute  the  will  of  the  president,  or  rather  to  act  in  cases  in 
which  the  executive  possesses  a  constitutional  or  legal  discretion,  noth- 
ing can  be  more  perfectly  clear  than  that  their  acts  are  only  politically 
examinable.  But  where  a  specific  duty  js_Jassi£H£d  by  law,  and  indi- 


^ 

vidual  rights  depencTup5n  the  performance  of  that  duty,  it  seems 
equally  clear  that  the  individual  who  considers  himself  injured,  has  a 
right  to  resort  to  the  laws  of  his  country  for  a  remedy.1  . 

In  1866  the  court  gave  the  following  briefer  yet  more  com- 
prehensive definition  of  ministerial  duties : 

A  ministerial  duty,  the  performance  of  which  may,  in  proper  cases, 
be  required  of  the  head  of  a  department,  by  judicial  process,  is  one  in 
respect  to  which  nothing  is  left  to  discretion.  It  is  a_simrjle,_definite 
duiy^arising  under  conditions  admitted  or  proved  to  exist,  and  imposed 
jjy  law.2 

The  .rule   appears  to  be_that   over  discretionary  or  political 
acts_the  courts  will  take  no  jurisdiction.     The  president  isre- 
spx^sjble  to^the  electorateL  not  to  Congress  nqr_  to  the  courts". 
Nor  will  the  courts  take  any  cognizance  of  the  discretionary  oT 
political  acts  of  the  subordinates ;  they  are  responsible  solely  to 
the  president  and  carry  out  his  directions.    With  regard  to  min 
isterial  duties,  however,  another  condition  prevails.    These  acts 
are  required  by  law,  and  the  courts  will  by  appropriate  means 
compel  their  performance  even  against  the  orders  of  the  presi 
dent.    Yet  since  the  president  has  in  his  hands  the  absolute  and 
unrestricted  power  to  remove  any  officer,  he  may  place  his  sub 
ordinates  in  the  uncomfortable  dilemma  of  facing  either  a  lega 
prosecution  or  removal.    The   most  extreme  statement  of  the 
president's  power  is  found  in  the  following  opinion  of  Attorney 
General  Gushing,  who  in  1855  wrote: 

1  l  Cranch,  137,  165,  1 66.        2  Mississippi  v.  Johnson,  4  Wall.  475,  498. 


THE  ADMINISTRATION  217 

I  hold  that  no  head  of  a  department  can  lawfully  perform  an  official  Extreme 
act  against  the  will  of  the  president,  and  that  will  is  by  the  Constitution 
to  govern  the  performance  of  all  such  acts.     If  it   were  not  thus,  power 
Congress  might  by  statute  so  divide  and  transfer  the  executive  power 
as  utterly  to  subvert  the  government  and  change  it  into  a  parliamen- 
tary despotism  like  that  of  Venice  or  Great  Britain,  with  a  nominal 
executive  chief  or  president  utterly  powerless  —  whether  under  the 
name  of  Doge  or  King  or  President  would  then  be  of  little  account 
so  far  as  regards  the  maintenance  of  the  Constitution.1 

The  so-called  elastic  clause  of  the  executive  article_ which  directs 
the  president  to  take  care  that  the  laws  be  faithfully  executed  in- 
creases the  power  ot  the  president  to  direct  the  action  of  other 
departments.  For  example,  in  the  Debs  case2  it  was  held  that  he 
might  direct  the  use  of  United  States  troops  to  facilitate  the  trans- 
portation of  the  mails  and  interstate  commerce,  and  in  the  N eagle 
case  3  that  the  president  might  take  means  for  which  no  law  ex- 
isted to  protect  the  judges  in  the  exercise  of  their  functions. 
Other  examples  might  be  cited  to  show  that  the  responsibility  for 
the  enforcement  of  the  law  enables  the  president  to  control  at 
his  discretion  and  to  a  very  large  degree  the  action  of  all  officers. 

With  the  increased  size  of  the  cabinet  and  the  rapid  and  increased  size 
vast  extension  of  governmental  activities  the  president's  ability 
to  direct  and  control  has  necessarily  somewhat  declined.  The 
very  multiplicity  of  public  business  makes  it  impossible  for  any 
one  person  to  assume  direction  over  the  whole  field.  Conse- 
quently, more  and  more,  the  departments  are  becoming  self- 
contained,  and  as  the  president's  knowledge  of  what  is  being 
done  diminishes,  his  control  declines.  Yet  at  any  moment  a 
matter  decided  by  a  department  head  in  the  ordinary  routine 
of  the  business  of  his  department  may  become  a  matter  of 
public  concern  and  require  presidential  action.  At  such  times 
it  becomes  evident  that  although  the  constancy  of  the  control 
has  diminished,  the  power  to  reverse  or  overrule  remains.4 

1  J.  A.  Fairlie,  The  National  Administration  of  the  United  States  of  America, 
p.  19,  quoting  7  Atty-Gen.  Opin.  453,  470.  2  See  p.  60.  3  See  p.  178. 

4  In  1913  the  Attorney-General  consented  to  the  postponement  of  the  trial 
of  a  criminal  case  in  California.  The  United  States  District  Attorney  in  charge 
of  the  prosecution  resigned  by  way  of  protest.  Public  opinion  became  excited, 
and  President  Wilson,  after  discussion  of  the  matter  in  cabinet  meeting,  directed 
that  the  prosecution  should  continue. 


218    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Departments 
created  by 
Congress 


Functions 
and  duties 
of  depart- 
ments deter- 
mined by 
Congress 


CONGRESSIONAL  CONTROL  OF  EXECUTIVE  DEPARTMENTS 

The  ultimate  source  of  the  power  of  all  the  executive  depart- 
ments is  found  in  statutes.  The  powers  and  duties  of  the  president 
alone  of  all  executive  officers  are  defined  by  the  Constitution  — 
all  other  officials  owe  their  existence  and  their  power  to  acts  of 
Congress.  By  the  clauses  of  the  Constitution  already  quoted, 
Congress  is  given  implied  power  to  create  and  define  the  duties 
of  such  departments.  Acting  upon  this,  Congress  has  since 
1789  created  ten  departments.  The  statutes  creating  these 
departments  necessarily  define  the  duties  of  their  heads,  and  as 
the  number  of  departments  has  increased  there  has  been  a 
transfer  of  power  from  one  department  to  another.  For  example, 
the  Treasury  Department  at  one  time  performed  many  of  the 
duties  which  in  1849  were  transferred  to  the  Department  of 
the  Interior,  while  in  1903  the  Departments  of  State  and  of 
the  Treasury  surrendered  certain  functions  to  the  Department 
of  Commerce  and  Labor,  which  in  turn  was  divided  into  two 
departments  in  1913. 

In  the  creation  of  these  departments  and  the  definition  of 
their  duties  Congress  is_surjreme,  subject  of  course :to~ptQsidential 
veto.  Thus  in  1913  the  new  Department  of  Labor  was  created 
in  spite  of  the  opposition  of  President  Taft,  who,  however, 
forbore  to  exercise  his  veto,  out  of  -deference,  it  is  said,  to  the 
wishes  of  his  successor.  In  thus  creating  new  departments  there 
is  not  merely  a  new  distribution  of  powers  and  functions  — 
sometimes  not  to  the  efficient  or  economical  advantage  of  the 
service  —  but  also  an  exercise  of  congressional  control.  The 
statutes  go  into  minute  details  and  directions  and  prescribe  not 
merely  what  shall  be  the  functions  of  the  department,  but  often 
the  specific  acts  which  shall  be  performed.  In  other  words,  the 
statutes  prescribe  a  large  number  of  ministerial  acts  over  which 
the  president  has  little  control.  Congressional  control  may  be 
carried  further  by  subsequent  legislation.1 

1  In  the  prosecution  of  the  war  President  Wilson  found  himself  so  hampered 

e  ironclad  organization  of  some  of  the  departments,  that  Congress  passed 

^authorizing  the  president  to  coordinate  or  consolidate  executive  bureaus, 

agencies,  and  offices,  in  the  interest  of  economy  and  the  more  efficient  conduct 

:  the  government.  — May  20,  1918,  Public  Act  No.  152,  6sth  Cong. 


THE  ADMINISTRATION  219 

But  aside  from  general  statutes  and  particular  acts  Congress  congress  may 
exercises  constant  control  through  appropriations.    This  control  through  ap- 
is exercised  positively  by  making  appropriations  for  certain  proj-  Pr°Priations 
ects  which  the  departments  may  or  may  not  have  recommended, 
and  by  prescribing  conditions   under  which  the  appropriation 
shall  be  used.    Negatively  congressional  control  is  exercised  by 
reducing  or  failing  to  appropriate  for  the  plans  recommended 
by  the  department.    Sometimes  the  vicious  practice  of  attaching 
general  legislation  to  appropriation  bills  is  resorted  to  in  order 
to  insure  the  passage  of  a  particular  measure.    This  method  of 
legislation  by  "  riders  "  was  freely  employed  during  the  adminis-  ["Riders"] 
tration    of    Andrew  Johnson,    but   was    checked    in    1879    by 
President  Hayes,  who  vetoed  all  the  appropriation  bills  to  which 
riders  were  attached.    In  recent  years,  however,  the  practice  has 
been  revived,  and  in  1912  President  Taft  vetoed  two  appropri- 
ation bills  declaring  that  "  the  importance  and  absolute  necessity 
of  furnishing  funds  to  maintain  and  operate  the  government 
cannot  be  used  by  the  Congress  to  force  upon  the  Executive 
acquiescence  in  permanent   legislation   which   he   cannot   con- 
scientiously approve."  l 

The  policy  of  various  departments,  however,   may  be  to  a  [Restriction 
large  extent  controlled  by  restrictions  placed  upon  the  appropri-  proprfations] 
ations  made  for  it.    For  example,  the  Navy  Department  was 
prevented    from   carrying  out   what   were   reported   to  be   the 
directions  of  the  president  by  the  following  proviso  attached  to 
an  appropriation  bill : 

That  no  part  of  the  appropriations  herein  made  for  the  Marine 
Corps  shall  be  expended  for  the  purposes  for  which  said  appropriations 
are  made  unless  officers  and  enlisted  men  shall  serve  as  heretobefore 
on  board  of  all  battleships  and  armored  cruisers,  and  also  upon  such 
vessels  of  the  navy  as  the  president  may  direct,  in  detachments  of  not 
less  than  eight  per  centum  of  the  strength  of  the  enlisted  men  of  the 
navy  on  said  vessels.2 

In  the  naval  appropriation  bill  for  1914  the  policy  of  the 
department  regarding  the  purchase  of  powder  was  controlled  by 
the  insertion  of  this  proviso : 

1  Congressional  Record,  Vol.  XLVIII,  p.  11025,  August  15,  1912. 

2  U.  S.  Statutes,  Vol.  XXXV,  chap.  255,  pp.  773-774. 


220    THE  GOVERNMENT  OF  THE  UNITED  STATES 


That  in  the  expenditures  of  this  appropriation,  or  any  part  thereof, 
for  powder,  no  powder  shall  at  any  time  be  purchased  unless  the 
powder  factory  at  Indian  Head,  Maryland,  shall  be  operated  on  a  basis 
of  not  less  than  its  full  maximum  capacity.1 

In  the  appropriations  for  naval  vessels  restrictions  are  found 
frequently  directing  the  building  of  certain  vessels  in  navy 
yards  or  upon  the  Pacific  coast,  and  requiring  contractors  to 
conform  with  the  eight-hour  law  for  laborers.2 

Congress  may  also  take  more  affirmative  control  over  the 
policy  of  a  department  by  appropriating  money  for  some  spe- 
cific object;  for  example,  the  free  distribution  of  seeds  or  the 
improvement  of  certain  rivers  and  harbors.  - 

Methods  by  Information  concerning  the  departments  is  brought  to  the 
gre8shobtains  attention  of  Congress  through  the  reports  made  by  the  head  of 
information  eacn  department  to  the  president,  and  by  him  transmitted  to 
Congress  with  recommendations.  In  addition,  any  member  of 
Congress  may  ask  informally  for  information,  which  as  a  matter 
of  courtesy  is  usually  furnished.  More  formal  are  the  resolutions 
of  either  House  calling  upon  the  heads  of  the  departments  to 
answer  questions  or  to  furnish  information.  There  is,  however,  no 
method  of  enforcing  compliance  with  the  request,  for  the  president 
may  direct  the  officer  to  refuse  to  give  the  desired  information  and 
Congress  is  helpless.3  Most  formal  of  all  are  the  committees  ap- 
pointed to  investigate  the  conduct  of  either  the  president  or  some 
of  his  subordinates.  Here  again  the  executive  may  refuse  to 
appear  or  to  answer  questions  and  may  direct  his  subordinates  to 
do  likewise,  although  as  a  matter  of  political  expediency  such  a 
course  is  seldom  pursued.  Finally,  there  is  the  cumbersome  and 
seldom-used  method  of  impeachment  by  which  Congress  can 
cause  the  removal  and  punishment  of  any  executive  officer. 

1  U.  S.  Statutes,  Vol.  XXXVII,  Part  I,  p.  896. 

2  Ibid.  Vol.  XXXV,  pp.  35,  158  ;  Vol.  XXXVI,  p.  628. 

8  See  the  case  of  Cleveland,  ante,  p.  188.  Also  the  following  extract  from  a 
message  of  President  Roosevelt,  January  6,  1909 :  "...  I  feel  bound,  however, 
to  add  that  I  have  instructed  the  Attorney-General  not  to  respond  to  that  portion 
of  the  resolution  which  calls  for  a  statement  of  his  reasons  for  non-action.  I 
have  done  so  because  I  do  not  conceive  it  to  be  within  the  authority  of  the 
Senate  to  give  directions  of  this  character  to  the  head  of  an  executive  depart- 
ment or  to  demand  from  him  reasons  for  his  action."  —  Congressional  Record, 
Vol.  XLIII,  Part  I,  p.  528 


President 
may  direct 
department 
to  refuse 


THE  ADMINISTRATION  221 

Taken  as  a  whole,  the  control  which  Congress  exercises  over  congressional 
the  cabinet  is  not  so  great  as  is  exercised  by  the  English  House 
of  Commons.  From  our  system  of  government  this  must  be 
evident.  In  the  English  system  of  parliamentary  government 
the  executives  are  absolutely  responsible  to  Parliament,  not  merely 
for  their  administrative  or  ministerial  acts  but  for  their  political 
or  discretionary  acts  as  well.  At  any  moment  a  hostile  vote  in  the 
House  of  Commons  may  force  the  resignation  of  the  executive. 
Not  so  in  the  United  States.  Congress  has  absolute  financial 
control  down  to  the  smallest  details,  and  by  statutes  can  to  a  very 
great  extent  control  the  ministerial  acts  of  the  executive ;  but  for 
its  political  acts,  its  spirit  and  policy,  the  executive  is  responsible 
not  to  Congress  but  to  the  electorate.  The  president  is  irremov- 
able, save  by  impeachment,  and  his  officers  hold  their  positions 
during  his  pleasure.  For  Congress  to  attempt  to  control  the 
discretionary  or  political  policy  of  the  administration  by  cutting 
off  supplies  and  so  stopping  the  operations  of  the  government 
would  probably  meet  with  the  political  disapproval  of  the  people. 
In  the  separation  of  powers  as  developed  in  the  United  States 
the  executive  cannot  be  forced  by  the  legislature,  although  Con- 
gress may  hamper  and  refuse  to  appropriate  funds  for  his  poli- 
cies. The  possibility  of  a  deadlock  is  always  present,  but  political 
adjustments  are  usually  made  and  a  compromise  accepted. 

THE  CIVIL  SERVICE 

The  civil  service  is  defined  as  the  executive  branch  of  the  civil  service 
public  service  as  distinguished  from  the  military,  naval,  and  judi- 
cial. Before  the  World  War  the  total  number  of  officers  and 
employees  of  the  United  States  was  estimated  at  over  five  hun- 
dred thousand,  not  including  military  or  naval  forces ;  while  in 
the  civil  service  as  defined  above  there  were  approximately  four 
hundred  thousand.  This  great  army  of  civil  employees  and 
officers  are  all  appointed,  either  by  the  president  alone  (36),  or 
by  the  president  with  the  advice  and  consent  of  the  Senate 
(IO>395)>  or  by  the  heads  of  departments  or  their  subordinates. 
Those  appointed  by  the  president  with  the  assent  of  the  Senate 
are  known  as  presidential  officers  and  include  the  heads  of  the 
departments,  their  assistants,  postmasters  of  all  but  the  fourth 


222    THE  GOVERNMENT  OF  THE  UNITED  STATES 

class,  collectars_of_ieyenue,  and  heads-^LalMocal_departments 
outside  of  Washington,  chiefs  of  bureaus  and  divisions,  and  a 
number  of  miscellaneous  positions.  But  by  both  the  Constitu- 
tion and  the  statutes  the  appointment  of  the  vast  majority  of 
the  civil  officers  is  vested  in  the  heads  of  the  departments. 
Since,  with  the  exception  of  the  period  when  the  Tenure  of 
Office  Act  was  in  force,  the  president  has  always  had  the 
unrestricted  power  of  removal,  and  since  this  power  of  removal 
gives  sanction  to  his  directions  to  heads  of  departments,  it  is 
possible  for  the  president  alone  to  compel  a  change  in  personnel 
of  nearly  three  hundred  thousand  offices. 

Terms  of  Originally  the  appointments  were  made  for  indefinite  terms,  — 

good  behavior  with  the  absolute  right  of  removal  at  any  time,  — 
but  in  1820  a  four-year  term  was  established  for  certain  officers, 
the  number  of  which  has  been  extended  by  subsequent  statutes. 
At  present,  moreover,  such  a  term  is  recognized  by  custom  sanc- 
tioned by  voluntary  resignations  or  by  removal  for  practically  all 
officers.    Thus  at  some  time  during  the  four-year  term  of  the 
president  he  has  the  opportunity  to  fill  almost  all  the  offices, 
partisan  At  the  organization  of  the  government  President  Washington, 

nS5eVromnt8  on  whom  devolved  the  organization  of  the  government  and  the 
aPPomtment  of  all  the  officers,  seemed  to  follow  three  principles  : 
Fitness  for  office  and  efficiency  he  absolutely  insisted  upon.  He 
also  recognized  geographical  conditions  and  attempted  to  distribute 
the  higher  offices  with  regard  to  the  importance  of  the  sections  of 
the  country.  Finally,  in  the  appointment  of  local  officers,  he  con- 
sulted the  feelings  of  the  locality  in  order  to  make  the  choice 
acceptable  to  the  people.  There  is  little  evidence  that  his  first  ap- 
pointments were  made  for  political  reasons  and  none  that  they  were 
for  party  reasons,  for  at  that  time  parties  were  scarcely  existent.  In 
his  second  administration,  however,  when  parties  were  solidified 
and  partisan  attacks  had  embittered  him,  he  wrote  to  Pickering : 

I  shall  not,  whilst  I  have  the  honor  of  administering  the  government, 
bring  men  into  any  office  of  consequence  knowingly  whose  political 
tenets  are  adverse  to  the  measures  the  general  government  is  pursuing ; 
for  this,  in  my  opinion,  would  be  a  sort  of  political  suicide.1 

1  C.  R.  Fish,  The  Civil  Service  and  the  Patronage,  pp.  13,  14.  Much  of  the 
material  for  this  chapter  has  been  drawn  from  Professor  Fish's  book. 


THE  ADMINISTRATION  223 

Consequently  the  civil  service  was   filled  with   Federalists,   a 
condition  which  was  continued  under  Adams. 

The  election  of  Jefferson  in  1800  presented  a  new  problem.  First  removal 
The  party  behind  Jefferson  was  in  opposition  both  in  principle  rea^smade 
•and  theory  to  the  Federalists ;  few  or  none  of  its  members  held  by  Jefferson 
office,  and  not  only  was  the  demand  strong  for  a  purifying  of 
the  service  of  the  Federalist  influences,  but  political  expedience 
demanded  recognition  and  reward  for  political  services.     The 
pressure  put  upon  Jefferson  was  tremendous,  and  he  yielded. 
Altogether  he  changed  one  hundred  and  nine  civil  officers  out 
of  a  total  of  four  hundred   and  thirty-three,  or  about  22  per 
cent.    Starting  with  high  ideals  of  improving  the  efficiency  of 
the  service  by  his  removals  and  new  appointments,  his  often 
quoted  lament,  "  Few  die  and  none  resign,"  indicates  his  diffi- 
culties.   Although  his  partisan  removals  seem  small  when  com- 
pared with  the  numbers  made  at  later  periods,  yet  on  him  must 
rest  the  burden  of  having  established  the  system. 

"  In  the  three  administrations  which  came  between  that  of  Growth  of 
Jefferson  and  Jackson  only  sixty-six  changes  in  offices  were  partisan*  * 
'made;  hence,  when  Jackson  came  to  the  presidency  in  1830,  a  J^grns 
.  condition  confronted  him  analogous  to  that  which  Jefferson  had  Jackson 
faced.  Jackson  met  it  with  more  brutal  frankness.  Conscien- 
tiously believing  in  the  theory  of  rotation  in  office  and  denying 
that  the  incumbent  had  any  vested  rights  to  his  position  or  was 
worthy  of  consideration,  he  set  out  to  remove  those  who  were 
inefficient  or  who  had  opposed  him  politically,  and  to  reward 
his  friends  and  supporters.  In  so  doing,  all  kinds  of  rumor, 
gossip,  and  tittle-tattle  were  considered  sufficient  evidence  to 
bring  about  a  removal.  During  his  two  administrations  two 
hundred  and  fifty-two  civil  officers  were  changed  out  of  a  pos- 
sible six  hundred  and  ten,  or  over  40  per  cent.  For  Van  Buren 
there  was  not  the  same  pressure  or  necessity,  and  he  made 
only  about  eighty  changes ;  but  this  small  number  was  never 
again  equaled  and  only  once  approached.  In  fact,  until  the 
administration  of  Grant,  with  the  exception  of  Van  Buren  and 
Fillmore,  the  number  of  changes  never  fell  below  three  hundred, 
and  under  Lincoln  and  Johnson  reached  fourteen  hundred  and 
fifty-seven  and  nine  hundred  and  three  respectively. 


The  "spoils 
system ' ' 


Underlying 
ideas  of 
spoils  system 


The  spoils 
system  first 
introduced 
in  states 


Effect  of 
spoils  system 


224    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  system  thus  fastened  on  the  country  is  known  as  the 
"  spoils  system,"  a  name  derived  from  a  speech  of  Senator 
Marcy  in  which  he  said :  "  The  politicians  are  not  so  fastidious 
as  some  gentlemen  are  as  to  disclosing  the  principles  upon 
which  they  act.  They  see  nothing  wrong  in  the  rule  that  to* 
the  victors  belong  the  spoil  of  the  enemy."  As  the  table  of 
changes  shows,  the  spoils  system  was  invoked  not  merely  when 
there  was  a  change  of  party  but  whenever  a  new  president  was 
inaugurated,  although  a  party  revolution  meant  a  more  whole- 
sale change  of  officers.  The  underlying  principles  of  the  spoils 
system  were  two,  the  idea  of  rotation  in  office  and  the  use  of 
office  as  ammunition  in  party  warfare.  Both  were  found  in 
colonial  times ;  but  the  idea  of  rotation  in  office  gained  popu- 
larity with  the  increase  of  democracy.  The  belief  that  changes 
in  office  were  of  educative  value,  the  feeling  that  the  duties  of 
a  public  servant  were  such  that  anyone  could  successfully  master 
them,  and  the  distrust  and  jealousy  of  an  officeholding  class 
made  the  principle  of  rotation  popular.1 

The  practical  necessities  of  the  politicians  and  the  success 
which  quite  generally  followed  a  skillful  use  of  patronage  con- 
vinced the  party  leaders  of  the  advantage  of  the  system.  It 
was  successfully  used  in  state  politics  before  it  was  in  national, 
and  the  wonder  is  that  it  was  not  earlier  adopted. 

Although  the  effect  of  the  spoils  system  may  have  hastened 
the  popular  control  of  the  government,  the  quadrennial  cyclones 
disorganized  the  civil  service.  The  character  of  the  officeholders 
was  not  always  bad.  Public  office  was  looked  on  as  a  gamble 
which  might  lead  to  nothing  or  to  great  rewards ;  hence  many 
men  of  first-rate  ability  sought  and  obtained  office  —  men  to 
whom  the  certain  tenure  and  fixed  rewards  of  the  present  day 

1  See  C.  R.  Fish,  The  Civil  Service  and  the  Patronage,  chap.  iv. 

"  The  duties  of  all  public  officers  are,  or  at  least  admit  of  being  made,  so 
plain  and  simple  that  men  of  intelligence  may  readily  qualify  themselves  for 
their  performance ;  and  I  cannot  but  believe  that  more  is  lost  by  the  long 
continuance  of  men  in  office  than  is  generally  gained  by  their  experience.  .  .  . 

"  In  a  country  where  officers  are  created  solely  for  the  benefit  of  the  people, 
no  one  man  has  more  intrinsic  right  to  official  station  than  another.  ...  No 
individual  wrong  is,  therefore,  done  by  removal,  since  neither  appointment  to 
nor  continuance  in  office  is  a  matter  of  right."  —  Extract  from  the  first  message 
of  Jackson,  Richardson's  "  Messages  of  the  .Presidents,"  Vol.  II,  p.  449 


THE  ADMINISTRATION  225 

would  not  appeal.  But  the  effect  of  these  frequent  changes 
upon  the  service  was  bad.  Notorious  instances  of  dishonesty 
were  discovered,  particularly  in  the  customs  service ;  and  igno- 
rance of  official  duties  was  common,  while  inefficiency  and 
extravagance  resulted.  In  addition,  the  pressure  which  was 
brought  to  bear  upon  the  president  and  the  heads  of  the 
departments  was  intolerable,  and  for  one  satisfied  appointee 
there  were  many  disappointed  ones  whose  enmity  had  to  be 
reckoned  with. 

Attempts  to  reform  these  conditions  began  before  the  Civil  Attempts  at 
War,  and  in  1853  an  act  was  passed  providing  for  the  classifi- 
cation of  the  clerks  in  Washington  upon  the  basis  of  compen- 
sation—  no  clerk  to  be  appointed  except  upon  an  examination 
conducted  by  the  head  of  the  department.  Inasmuch  as  these 
examinations  were  not  competitive  but  "  pass "  examinations, 
they  offered  little  check  to  the  spoils  system.  In  1864  Charles 
Sumner  introduced  a  bill  in  the  Senate  which  provided  for  a 
board  of  examiners,  appointment  as  the  result  of  competitive 
examination,  promotion  by  seniority,  and  removal  for  good  cause 
only ;  but  no  action  was  taken  upon  it.  The  first  reform  measure 
actually  to  become  a  law  was  passed  as  a  rider  to  the  appropriation 
T>ills  of  1871.  By  this,  the  president  was  authorized  to  prescribe 
regulations  7or  admission  to  the  service  and  to  ascertain  the 
fitness  of  each  candidate.  The  responsibility  for  the  organization 
of  the  commission  rested  entirely  upon  the  president.  President 
Grant,  who  had  been  urging  that  some  reform  be  made,  ap- 
pointed a  commission  with  George  William  Curtis  as  chairman, 
which  proceeded  to  formulate  rules  for  competitive  examinations 
for  admission  to  the  service.  In  1872  these  rules  were  applied 
to  the  departments  in  Washington  and  the  federal  offices  in 
New  York.  But  Grant  found  it  impossible  to  live  up  to  the 
standard  which  he  had  set  or  to  resist  the  pressure  brought  to 
bear  upon  him.  He  made  such  an  offensive  appointment  in 
New  York  that  Curtis  resigned,  and  in  1875  Congress  refused 
to  make  further  appropriation  for  the  continuance  of  the  work. 
The  plan  was  revived  for  the  post-office  and  customs  service  in 
New  York  in  1877,  but  the  first  comprehensive  and  detailed 
civil  service  reform  act  was  not  passed  until  1883. 


226    THE  GOVERNMENT  OF  THE  UNITED  STATES 

present  The  act  of  1883  and  the  subsequent  amending  statutes,  to 

system  gether  with  the  rules  promulgated  from  time  to  time  by  presi- 
dents, established  the  following  system :  (i)  A  commission  of 
three,  not  more  than  two  of  whom  shall  belong  to  the  same 
party,  is  appointed  by  the  president.  This  commission  is  to  aid 
the  president  in  making  regulations  for  the  service  and  to  con- 
duct competitive  examinations  and  to  recommend  candidates. 
(2)  Clerks  and  officers  in  certain  departments  are  classified 
according  to  salary,  and  to  this  group,  known  as  the  "  classified 
service,"  appointment  can  be  gained  only  bycompetitive_exami- 
nation.  (3)  Examinations  are  open,  of  a  practical  nature,  and  a 
period  of  probation  is  to  precede  the  final  appointment.  (4)  Ap- 
pointments to  the  offices  in  Washington  shall  be  apportioned 
among  the  states  according  to  population.  This  provision  is 
extremely  difficult  to  enforce,  restricts  competition,  works  an  injury 
to  the  service,  and  opens  the  doors  for  fraud.  (5)  Political  assess- 
ment by  federal  officers  or  upon  premises  occupied  by  federal 
offices  is  forbidden,  and  no  person  can  be  removed  for  refusing 
to  contribute  to  a  political  fund.  (6)  No  senator  or  representative 
is  allowed  to  make  any  recommendation  for  the  classified  service. 
(7)  Veterans  who  have  suffered  from  wounds  or  sickness  in  the 
line  of  duty  are  given  a  preference  in  the  appointments.  (8)  The; 
law  is  not  to  apply  to  any  person  nominated  by  the  president  and 
confirmed  by  the  Senate  ;  that  is,  to  presidential  offices. 
Extension  The  act  directed  the  Secretary  of  the  Treasury  and  the  Post- 

master-General to  make  classification  and  provided  that  the  other 
departments  should  do  so  at  the  direction  of  the  president,  and 
in  its  immediate  application  covered  about  fourteen  thousand 
positions.  Successive  legislation  and  presidential  orders  have 
extended  the  scope  of  the  act,  until  by  1916  the  classified  service, 
for  which  competitive  examinations  are  necessary,  included  over 
two  hundred  and  ninety-six  thousand  positions  out  of  approxi- 
mately four  hundred  and  eighty  thousand.1  As  the  presidential 
offices  number  over  ten  thousand,  and  as  over  twenty-five  thou- 
sand offices  are  specially  exempt  because  of  their  confidential  or 

1  Since  1916  the  expansion  of  the  civil  service  because  of  the  war  has  pro- 
duced an  abnormal  condition,  which  renders  statistics  for  comparative  purposes 
of  little  value. 


THE  ADMINISTRATION  227 

peculiar  nature,  there  are  less  than  one  hundred  thousand,  or  less 
than  a  quarter  of  the  total  of  more  than  four  hundred  thousand 
offices,  which  are  entirely  at  the  mercy  of  the  spoilsman.  Until 
1913  every  president  made  some  additions  to  the  classified 
service,  but  whenever  there  was  a  change  of  party  there  was 
great  criticism  of  the  act  and  a  constantly  growing  demand  to 
make  exemptions. 

The  first  party  revolution  after  the  passage  of  the  act  came  Effect  of 
in  1884  and  brought  Cleveland  to  office,  pledged  to  the  prin- 
ciples  of  civil  service  reform.  Nevertheless,  in  sixteen  months 
he  removed  90  per  cent  of  the  presidential  officers,  68  per 
cent  of  the  unclassified  service  in  the  Interior  Department, 
and  practically  all  the  fourth-class  postmasters.  Of  the  classified 
service,  however,  less  than  10  per  cent  were  changed,  and  before 
the  end  of  his  term  he  had  extended  the  classified  service  to 
include  the  railway  postal  service.  In  1888  President  Harrison 
and  the  Republicans  came  to  power,  and  one  of  the  political 
weaknesses  of  the  act  was  apparent.  Whenever  the  system  was 
extended  to  a  new  class  of  offices,  the  incumbents  were  brought 
within  the  protection  of  the  rules  without  having  to  pass  exami- 
nations. Hence  it  was  easy  for  a  retiring  president,  particularly 
when  it  was  apparent  that  his  successor  was  to  be  of  another 
party,  to  protect  his  appointees  and  embarrass  his  successor. 
Such  was  the  case  in  1888,  and  Harrison  up  to  1890  made  over 
thirty-five  thousand  removals,  about  fifteen  thousand  more  than 
were  made  by  President  Cleveland.  The  second  administration 
of  Cleveland  saw  some  partisan  removals,  but  a  simplification 
and  improvement  and  extension  of  the  system  as  used.  In  all, 
about  thirty  thousand  offices  were  added  to  the  classified  service, 
so  that  it  then  included  about  eighty-five  thousand  out  of  two 
hundred  and  five  thousand.  With  the  return  of  the  Republicans 
in  1896  there  came  a  backward  step.  The  unclassified  service, 
still  large,  served  as  a  sop  to  the  office  seekers ;  the  war  with 
Spain,  with  the  resulting  extension  in  the  service,  furnished 
places  for  more ;  but  thirty-six  hundred  and  ninety-five  places 
were  removed  from  the  classified  service,  over  six  thousand 
transferred  from  the  charge  of  the  commission  to  that  of  the 
Secretary  of  War,  and  one  thousand  temporary  appointments 


228    THE  GOVERNMENT  OF  THE  UNITED  STATES 

made  permanent.  The  administrations  of  Roosevelt  and  Taft, 
both  Republicans  and  following  Republican- presidents,  saw  few 
partisan  changes  and  many  extensions.  The  most  noteworthy 
under  Roosevelt  were  the  rural  free  delivery  service,  the  census 
office,  the  forestry  service,  and  the  fourth-class  postmasters  north 
of  the  Ohio,  —  in  all  about  one  hundred  thousand.  President 
Taft  continued  the  policy  of  extensions,  notably  by  his  order  of 
October  15,  1912,  which  brought  the  remainder  of  the  fourth- 
class  postmasters  under  the  rules,  and  both  he  and  Roosevelt 
attempted  to  introduce  the  merit  tradition  in  the  diplomatic 
and  consular  service. 

The  policy  of  The  result  was  that  when  the  Democrats  came  to  power  in 
w?Sonnt  1913,  after  being  sixteen  years  out  of  office,  there  was  unusual 
pressure  for  office  and  only  about  one  hundred  thousand  places  in 
the  unclassified  service  to  satisfy  the  demand.  President  Wilson, 
who  had  been  a  strong  advocate  of  civil  service  reform  and  a 
vice  president  of  the  National  Civil  Service  Reform  League,  was 
forced  to  make  some- concessions.  The  fourth-class  postmaster- 
ships,  which  had  been  covered  into  the  service  less  than  a  month 
before  his  election,  were  practically  all  held  by  Republicans  in 
the  South,  the  stronghold  of  the  Democrats,  and  had  been  con- 
sidered the  legitimate  rewards  for  party  service.  On  May  7,  1913, 
the  president  amended  the  previous  orders  by  providing  that  no 
fourth-class  postmaster  should  be  given  a  classified  status  unless 
he  was  appointed  as  the  result  of  competitive  examination.  The 
present  incumbents  might,  if  they  chose,  take  the  examinations, 
but  according  to  the  rules  the  appointment  might  be  made  from 
the  three  candidates  receiving  the  highest  marks.  A  Senate 
amendment  was  added  to  the  Underwood  Tariff  Bill,  allowing 
the  appointment  of  all  officials  connected  with  the  collection  of 
the  new  income  tax  under  such  rules  as  "may  insure  faithful 
and  competent  service."  This  and  the  provision  in  the  new 
banking  act  which  directs  that  the  employees  of  the  Federal 
Reserve  Board  are  to  be  appointed  without  regard  to  the  pro- 
visions of  the  Civil  Service  Act  were  failures  to  extend  the 
system  where  it  was  most  needed.  The  Urgency  Deficiency 
Bill  of  1912  contained  a  notorious  backward  step.  By  one 
of  its  provisions  it  removed  from  the  classified  service  every 


THE  ADMINISTRATION  229 

subordinate  of  the  collectors  of  United  States  revenue  and  in  the 
offices  of  the  United  States  marshals.  These  concessions  to  the 
spoilsmen  have  brought  bitter  criticism  upon  President  Wilson. 
Yet  it  may  be  doubted  whether  the  changes,  even  the  exemptions, 
involved  a  greater  per  cent  of  partisan  appointments  than  were 
made  by  Harrison  or  McKinley,  while  the  necessity  of  solidify- 
ing the  party  was  certainly  greater  than  that  which  confronted 
his  predecessors.1 

The  great  act  of  1883  provides  that  the  examinations  shall  be  civil-service 
"  practical  in  their  character,  —  and  so  far  as  may  be  shall  relate 
to  those  matters  which  will  fairly  test  the  relative  capacity  and 
fitness  of  the  persons  examined  to  discharge  the  duties  of  the 
service  in  which  they  seek  to  be  appointed."  This  provision  is 
in  striking  contrast  with  the  principles  adopted  in  England. 
There  the  examinations  are  of  a  general  character,  designed  to 
test  the  candidate's  ability,  capacity,  and  general  education.  The 
attempt  is  made  to  obtain  well  or  highly  educated  men  who  may 
be  trained  in  the  duties  of  governmental  service.  In  the  United 
.States  the  opposite  principle  is  adopted.  The  endeavor  is  to  get 
candidates  already  trained  in  the  special  duties  required  of  their 
position,  and  it  is  assumed  that  such  are  to  be  found  in  private 
enterprises.  The  result  is  startling.  In  England  the  highest  posi- 
tions are  filled  by  examinations  as  difficult  as  the  honor  exami- 
nations in  the  best  universities,  while  the  lower  positions  require 
considerably  more  training  than  is  obtained  in  the  average  Amer- 
ican high  school.  As  a  result,  the  English  service  attracts  to  it 
a  highly  educated  class,  untrained  it  is  true  in  the  technical  duties 
of  their  positions,  but  fitted  to  develop  into  very  useful  and  able 
officials.  In  the  United  States  the  examinations,  except  for  the 
positions  requiring  scientific  or  technical  knowledge,  in  general 
require  not  much  more  than  the  ordinary  high-school  education, 
together  with  some  practical  proficiency.  As  a  result,  the  candi- 
dates do  not  have  the  education  and  general  ability  of  the  English 
officials  and  are  frequently  men  of  less  capacity  than  are  found 
in  private  enterprises.  Attempts  on  the  part  of  the  examiners  to 

1  By  executive  order  of  March  31,  1917,  President  Wilson  extended  the  com- 
petitive system  to  all  first-,  second-,  and  third-class  postmasters.  Appointments 
are  now  made  to  these  offices  as  a  result  of  competitive  examinations. 


Standard 


Promotions 


Removals 


230    THE  GOVERNMENT  OF  THE  UNITED  STATES 

raise  the  educational  standard  are  subject  to  attack ;  the  argu- 
ment being  that  practical  and  technical  skill  rather  than  education 
is  required. 

The  standard  of  passing  these  examinations  is  not  high  —  70 
on  the  scale  of  100.  From  the  lists  of  those  who  have  passed, 
the  commission,  on  application  of  any  appointing  officer,  sends 
the  names  of  the  three  obtaining  the  highest  per  cent.  From 
these  names  the  appointment  must  be  made  or  else  reasons  be 
given.  The  competition  thus  is  not  absolute  and  is  furthermore 
limited  by  two  provisions.  First,  preference  for  disabled  veterans 
is  given  to  the  extent  of  placing  the  names  of  those  receiving 
the  rating  of  65  per  cent  or  more  above  all  others.  Second, 'the 
attempt  to  apportion  the  offices  in  Washington  according  to  the 
population  of  the  states  frequently  necessitates  the  listing  of 
candidates  of  low  rating  above  those  of  higher  standing.  The 
person  selected  for  appointment  is  placed  upon  probation  for  six 
months ;  and  if  satisfactory  at  the  end  of  that  time  he  receives  a 
permanent  appointment. 

Promotions  are  made  in  the  service  as  the  result  of  further 
competitive  examination,  taken  in  connection  with  the  efficiency 
records  kept  by  the  department,  and  the  opinion  of  the  candi- 
date's superior  officer.  Criticism  has  been  leveled  at  these  effi- 
ciency records,  the  charge  being  that  they  open  the  way  for 
official  tyranny  and  favoritism  and  encourage  servility  on  the 
part  of  the  subordinates.  Such  danger  of  course  exists,  yet  if 
efficiency  in  daily  work  is  to  be  recognized  and  rewarded,  the 
power  to  estimate  it  must  be  lodged  in  the  hands  of  those  in 
immediate  contact  with  the  employee.  These  records,  it  would 
seem,  must  be  taken  into  account,  or  else  promotion  must 
be  placed  either  upon  seniority  or  upon  the  basis  of  fresh 
competition  without  consideration  of  past  service. 

The  power  of  removal  is  restricted  in  only  one  particular. 
Refusal  to  perform  political  service  or  to  contribute  to  a  political 
party  cannot  be  made  a  cause  for  removal.  The  presidential 
regulations,  however,  have  gone  further  in  the  attempt  to  make 
the  service  nonpartisan  and  have  forbidden  political  activity  upon 
the  part  of  the  employees.  While  they  retain  the  right  to  vote, 
they  are  forbidden  to  take  active  part  in  the  management  of  any 


THE  ADMINISTRATION  231 

party  or  in  furthering  any  election.    Disobedience  of  these  rules 
is  cause  for  removal.    Thus  partisan  activity  is  prohibited. 

Aside  from  the  statutory  limitation  upon  removal  for  refusal 
to  perform  political  service,  the  president,  either  personally  or 
through  regulations  and  directions  to  the  departments,  can  regu- 
late the  removals  in  all  branches  of  the  service,  classified  or 
unclassified.  Appointment  to  a  position  in  the  classified  service 
is  thus  not  equivalent  to  a  life  appointment,  and  the  courts  have 
held  that  such  appointment  does  not  give  "  any  such  tenure  of 
office  as  to  confer  upon  them  a  property  right  in  the  office  or 
place."  1  Again  and  again  the  courts  have  held  that  the  right 
of  removal  is  an  incident  of  the  right  of  appointment  and  that 
they  will  not  review  or  inquire  into  the  causes  of  such  removal. 
The  civil  service  regulations  are  thus  voluntary  limitations  made 
by  the  president  upon  his  power  a^d  directions  as  to  the  method 
in  which  his  subordinates  shall  exercise  this  power.  Rule  XII, 
Sect,  ii,  provides  that  no  person  shall  be^removed  from  a  com-  causes  for 
petitive  position  except  for  such  cause  aswilTpromote  the  effi-  £nstltednust 
ciency  of  the  service.  The  president  or  heads  of  the  departments, 
when  satisfied  that  an  employee  is  inefficient  or  incapable,  may 
remove  that  employee  without  notice,  but  the  ground  for  removal 
must  be  stated.  When  recommendations  for  removal  are  made 
by  subordinate  officials  to  the  heads  of  the  departments,  the  de- 
partment chief  may,  at  his  discretion,  inform  the  person  to  be 
removed  of  the  causes  and  allow  him  to  answer  the  charges. 
Of  course  in  addition  to  inefficiency,  insubordination  and  viola- 
tion of  the  rules  and  regulations  of  either  the  civil  service  or 
the  particular  department  constitute  good  reasons  for  removal. 

The  criticism  is  frequently  made  not  that  there  are  too  many  Danger  not 
removals  but  that  there  are  too  few  inefficient  employees  dis-  maVSuttoo 
charged ;  not  that  the  service  is  changed  too  rapidly  but  that  it  few  rem°vals 
has  become  clogged  with  superannuated  employees.    There  is 
considerable  truth  in  this  criticism,  although  none  in  the  charge 
that  these  employees  are  protected  by  the  civil  service  rules. 
The  matter  is  in  the  discretion  of  the  president  and  the  heads 
of  the  departments.    These  executives  are  confronted  by  a  seri- 
ous dilemma.    Either  they  must  connive  at  inefficiency  with  its 

1  Morgan  v.  Munn,  84  Fed.  Rep.  551,  553. 


232    THE  GOVERNMENT  OF  THE  UNITED  STATES 

attendant  extravagance  or  else  they  must  discharge  employees 

whose  salaries  have  been  so  low  that  they  have  been  able  to 

Pensions  for    make  no  provision  for  old  age.    The  matter  of  civil  pensions, 

i*S?dh!ii     either  in  the  form  of  compulsory  deductions  from   salaries   or 

service  urged    governmental  grants,  has  been  frequently  discussed.     In   1912 

but  never  ^  •     j       /y*    • 

adopted  President  Taft's  commission  upon  economy  and  emciency  rec- 
ommended that  each  employee  in  the  classified  service  at  Wash- 
ington upon  reaching  the  age  of  seventy  should  be  retired  upon 
half  pay,  provided  that  no  allowance  should  be  less  than  six  hun- 
dred dollars.yrhe  report  further  contemplated  that  each  person 
hereafter  entering  the  service  should  pay  the  entire  expense  of 
/  his  own  retirement  by  annual  contributions  from  his  salary  so 
that  upon  reaching  the  age  of  seventy  the  fund  he  had  accumu- 
lated would  provide  for  the  retiring  allowance.  This  recommenda- 
tion was  not  adopted.  Although  private  corporations  are  finding 
that  it  is  more  economical  to  pension  superannuated  employees, 
the  idea  of  pension  for  the  civil  servants  of  the  government  has 
never  appealed  to  Congress.  Although  similar  systems  have 
been  adopted  in  other  countries  to  the  great  improvement  of 
the  service,  no  other  country  has  been  led  into  such  an  extrava- 
gant military  pension  system  as  is  now  in  vogue  in  the  United 
States.  Fear  of  similar  experience  may  well  cause  Congress  to 
itate  before  entering  upon  a  scheme  of  civil  pensions. 


ADMINISTRATIVE  REGULATIONS 


The  discipline  of  this  multitude  of  officials  as  well  as  the 
direction  of  the  discretionary  power  they  possess  is  accomplished 
by  administrative  ordinances  and  regulations. 

m  Europe  In  European  countries  these  are  much  more  numerous  and 

wide  ordi-       far-reaching  than  in  the  United  States.    In  France,  for  example, 

the  custom  of  passing  statutes  in  general  terms  places  upon  the 

president,  the  ministers  and  prefects,  and  even  the  mayors,  the 

duty  of  issuing  ordinances  to  carry  into  effect  the  principle  of 

the  law.    A  similar  practice  prevails  in  Germany.     In  England 

.   legislation  goes  into  more  detail,  but  even  there  the   statutory 

and  provisional  orders  give  the  executive  more  ordinance  power 

than  it  is  the  practice  to  give  in  the  United  States.    In  the 


THE  ADMINISTRATION  233 

United  States  legislation  goes  into  such  detail,  and  congressional  in  the  united 
control  through  appropriations  is  carried  to  such  a  degree  that  utlorTis^1 
the  extent  of  executive  regulation  by  means  of  administrative  detailed 
orders  is  underestimated.    As  Professor  Fairlie  says  : 

There  are  in  fact  many  elaborate  systems  of  executive  regulations  Extent  of  ad- 
governing  the  transaction  of  business  in  all  the  various  branches  of 


the  administration.  These  include  organized  codes  of  regulation  for  the  the  united 
army  and  navy,  postal  service,  the  patent  office,  pension  office,  the  land 
office,  the  Indian  service,  the  customs,  internal  revenue,  and  revenue 
cutter  service,  the  consular  service,  and  the  rules  governing  examinations 
and  appointments  to  the  whole  subordinate  civil  service,  and  in  addi- 
tion to  these  systematized  rules  there  is  an  enormous  mass  of  indi- 
vidual regulations,  knowledge  of  which  is  limited  to  the  few  persons 
who  have  to  apply  them  and  to  those  whom  they  affect.1 

These  regulations,  made  by  the  president  or  by  the  heads  of  the 
departments,  seem  at  first  sight  to  involve  a  contradiction  of  the 
principle  of  our  Constitution  that  a  power  delegated  to  a  par- 
ticular  branch  of  the  government  cannot  by  it  be  delegated  to  power 
another  department.  While  this  principle  is  true,  and  no  real 
legislative  power  may  be  delegated  by  Congress  to  the  executive 
department,  yet  "  discretionary  authority  may  be  granted  to 
executive  and  administrative  authorities  :  (i)  to  determine  when 
and  how  powers  conferred  are  to  be*  exercised  ;  and  (2)  to  estab- 
lish administrative  rules  and  regulations  binding  both  upon  their 
subordinates  and  upon  the  public,  fixing  in  detail  the  manner 
in  which  the  requirements  of  the  statutes  are  to  be  met  and  the 
rights  therein  created  to  be  enjoyed."  2  The  difference  between 
the  proper  and  the  improper  delegation  of  such  authority  was 
clearly  stated  in  the  opinion  of  the  case  of  Field  v.  Clark,  where 
.the  court  said  : 

The  true  distinction  is  between  the  delegation  of  power  to  make  the 
law,  which  necessarily  involves  a  discretion  as  to  what  it  shall  be,  and 
conferring  authority  or  discretion  as  to  its  execution,  to  be  exercised 

1  F.  ].  Goodnow,  The  Principles  of  the  Administrative  Law  of  the  United 
States,  p.  87,  quoting  ].  A.  Fairlie,  "  The  Administrative  Power  of  the  President," 
in  Michigan  Law  Review,  Vol.  H,  pp.  190-205. 

2  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  II, 
p.  1318. 


Such 

regulations 

necessary 


Regulations 
which  affect 
the  officers 
or  employees 
of  the  gov- 
ernment 


Power  of 

the  president 
to  make  regu- 
lations for 
the  army 


234    THE  GOVERNMENT  OF  THE  UNITED  STATES 

under  and  in  pursuance  of  the  law.  The  first  cannot  be  done ;  to  the 
latter  no  valid  objection  can  be  made.1 

The  court  furthermore  held  that  such  a  delegation  was  not 
only  allowable  but  absolutely  necessary.  For  example,  in  1907 
it  said : 

Indeed,  it  is  not  too  much  to  say  that  a  denial  to  Congress  of  the 
right,  under  the  Constitution,  to  delegate  the  power  to  determine  some 
fact  or  state  of  things  upon  which  the  enforcement  of  its  enactment 
depends,  would  be  "to  stop  the  wheels  of  government"  and  to  bring 
about  confusion,  if  not  paralysis,  in  the  conduct  of  public  business.2 

Such  ordinances  or  regulations  may  be  considered  under  two 
classes:  (i)  those  which  affect  the  members  of  the  service, - 
military,  naval,  or  civil,  —  and  (2)  those  which  affect  the  public. 
In  both  cases  the  power  to  issue  them  is  derived  from  some  con- 
stitutional provision  or  from  some  statute.  In  the  first  class  the 
regulations  for  the  army  and  navy  made  by  the  executive  may 
be  derived  from  •  his  constitutional  position  as  commander  in 
chief.  It  is  true  that  Congress  is  also  given  power  to  make  rules 
for  the  government  of  the  land  and  naval  forces,  but  the  courts 
have  repeatedly  held  that  the  regulations  of  the  president  as 
commander  in  chief  were  legal : 

The  power  of  the  executive  to  establish  rules  for  the  government  of 
the  army  is  undoubted.  .  .  .  The  power  to  establish  implies,  necessarily, 
the  power  to  modify  or  repeal,  or  to  create  anew.  .  .  .  Such  regulations 
cannot  be  questioned  or  defied  because  they  may  be  thought  unwise 
or  mistaken.8 


acts 


power  to  In  the  civil  service  such  regulations  may  be  derived  from  the 

lions5  derived  constitutional  provision  directing  the  president  to  enforce  the  laws 
°^  tlie  United  States,  but  more  frequently  the  power  comes  from- 
some  Particu^ar  act-  ^n  anv  c386  ^e  regulations  made  by  the 
president  or  the  heads  of  the  departments  must  not  be  contrary 
to  the  Constitution,  general  law,  or  particular  statutes.  The  power 

1  143  U.  S.  649,  693,  694,  quoting  with  approval  Cincinnati,  Wilmington,  etc., 
R.  R.  Co.  v.  Commission,  i  Ohio  Stat.  88. 

*  Union  Bridge  Co.  v.  United  States,  204  U.  8.^364,  387. 

8  United  States  v.  Eliason,  16  Peters,  301,  302"  quoted  by  J.  A.  Fairlie,  in  "The 
National  Administration  of  the  United  States,"  p.  26,  where  references  to  other 
cases  are  given. 


THE  ADMINISTRATION  235 

to  enforce  these  regulations  is  derived  from  the  power  to  dismiss 
any  officer  whom  the  executive  has  appointed.  But  these  ordi- 
nances may  also  involve  penal  punishment,  as,  for  example,  the 
'code  for  the  revenue  cutter  service,  which  is  based  entirely  upon 
executive  order,  establishes  penalties  that  the  courts  will  enforce.1 

These  regulations,  however,  may  affect  not  merely  the  mem- 
bers  of  the  service  but  the  general  public.  They  may  not  only  pre- 
scribe  what  the  citizen  shall  do  in  order  to  enjoy  the  service  of 
the  department  (for  example,  the  postal  regulations)  but  also  may  extent  of  de- 
operate  to  the  extent  of  depriving  him  of  either  his  property  or  perlongof 
his  liberty  at  the  discretion  of  some  administrative  officer.   What  property1 
then  becomes  of  the  principle  that  no  citizen  can  be  deprived  of 
his  life,  liberty,  or  property  without  due  process  of  law,  if  an 
administrative  tribunal  or  official  can,  without  a  trial,  imprison 
or  fine  a  person  ?   The  leading  case  upon  this  subject  was  decided 
in  1856  in  which  the  court  held  that  due  process  of  law,  or  the 
law  of  the  land,  neither  by  reason  nor  precedent  necessarily 
involved  judicial  proceedings.2 

In  1882  the  court  cited  the  above  case  and  held  that  a  war-  Property  may 
rant  for  the  collection  of  taxes  issued  against  a  private  individual  taxes1  with- 
authorizing  the  sale  of  property  was  due  process  of  law,  saying 
in  the  course  of  the  opinion  : 

The  prompt  payment  of  taxes  is  always  important  to  the  public  wel- 
fare. It  may  be  vital  to  the  existence  of  a  government.  The  idea  that 
every  taxpayer  is  entitled  to  the  delays  of  litigation  is  unreason.  If  the 

1  J.  A.  Fairlie,  The  National  Administration  of  the  United  States,  p.  22 ; 
F.  J.  Goodnow,  The  Principles  of  the  Administrative  Law  of  the  United  States, 
pp.  84  ff. 

2  "  To  avoid  misconstruction  upon  so  grave  a  subject,  we  think  it  proper  to  state 
that  we  do  not  consider  Congress  can  either  withdraw  from  judicial  cognizance 
any  matter  which,  from  its  nature,  is  the  subject  of  a  suit  at  the  common  law,  or 
in  equity,  or  admiralty ;  nor,  on  the  other  hand,  can  it  bring  under  the  judicial 
power  a  matter  which,  from  its  nature,  is  not  a  subject  for  judicial  determina- 
tion.   At  the  same  time  there  are  matters,  involving  public  rights,  which  may  be 
presented  in  such  form  that  the  judicial  power  is  capable  of  acting  on  them, 
and  which  are  susceptible  of  judicial  determination,  but  which  Congress  may 
or  may  not  bring  within  the  cognizance  of  the  courts  of  the  United  States,  as  it 
may  deem  proper"  (Murray's  Lessee  v.  Hoboken   Land  and  Improvement  Co., 
18  How.  272).    See  also  an  excellent  article  by  Professor  Thomas  Reed  Powell 
on  "The   Conclusiveness  of   Administrative   Determinations   in  the   Federal 
Government,"  in  American  Political  Science  Review,  Vol.  I,  pp.  582  ff. 


Examples  of 
administra- 
tive decisions 
where  no 
judicial  de- 
cision is 
necessary: 


(i)  Land 
patents 

(a)  Customs 
valuation 

(3)  Fraud 
orders 


(4)  Railroad 
rates 


236    THE  GOVERNMENT  OF  THE  UNITED  STATES 

laws  here  in  question  involved  any  wrong  or  unnecessary  harshness,  it 
was  for  Congress  or  the  people  who  make  congresses  to  see  that  the 
evil  was  corrected.  The  remedy  does  not  lie  with  the  judicial  branch 
of  the  government.1 

Summarizing  some  of  the  more  important  decisions,  it  has 
been  held  that  a  land  patent  issued  in  accordance  with  law,  "  in 
a  court  of  law,  is  conclusive  as  to  all  matters  properly  determin- 
able  by  the  Land  Department,  when  its  action  is  within  the  scope 
of  its  authority,  that  is,  when  it  has  jurisdiction  under  the  law 
to  convey  the  land  "  ; 2  also  that  the  valuation  made  by  a  customs 
officer  is  not  open  to  question  in  an  action  of  law,  as  long  as  the 
officers  acted  without  fraud  and  within  the  power  conferred  on 
them  by  statute.3  The  issuance  of  "  fraud  orders  "  by  the  Post 
Office  Department  was  upheld  by  the  court  in  the  following  words  : 

It  is  too  late  to  argue  that  due  process  of  law  is  denied  whenever 
the  disposition  of  property  is  effected  by  the  order  of  an  executive 
department.  Many,  if  not -most,  of  the  matters  presented  to  these  depart- 
ments require  for  their  proper  solution  the  judgment  or  discretion  of 
the  head  of  the  department,  and  in  many  cases,  notably  those  connected 
with  the  disposition  of  public  lands,  the  action  of  the  department  is 
accepted  as  final  by  the  courts,  and  even  when  involving  questions  of 
law  this  action  is  attended  by  a  strong  presumption  of  its  correctness. 
That  due  process  of  law  does  not  necessarily  require  the  interference 
of  the  judicial  power  is  laid  down  in  many  cases  and  by  many  eminent 
writers  upon  the  subject  of  constitutional  limitations.  ...  If  the  ordi- 
nary daily  transactions  of  the  departments,  which  involve  an  interference 
with  private  rights,  were  required  to  be  submitted  to  the  courts  before 
action  was  finally  taken,  the  result  would  entail  practically  a  suspension 
of  some  of  the  most  important  functions  of  the  government.4 

Finally,  by  the  amendment  in  1906  to  the  Interstate  Commerce 
Act,  the  Commission  was  intrusted  with  the  power  to  make 
rates  for  railroads  engaged  in  interstate  commerce  provided  the 
same  were  "just  and  reasonable,"  while  by  the  Act  of  1914  the 

1  Springer  v.  United  States,  102  U.  S.  566,  594. 

2  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  646. 
8  Hilton  v.  Merritt,  1 10  U.  S.  97. 

4  Public  Clearing  House  v.  Coyne,  194  U.  S.  497,  508,  509.  For  an  extended 
discussion  of  this  subject  see  W.  W.  Willoughby,  The  Constitutional  Law  of  the 
United  States,  Vol.  II,  chap.  Ixiv. 


THE  ADMINISTRATION  237 

Federal  Trade  Commission  may  issue  orders  to  prevent  unfair  (5>  Trade 
competition,  and  its  findings,  should  the  case  be  carried  to  court,  regulatl( 
are  to  be  regarded  as  conclusive  evidence. 

Persons  may  be  restrained  of  their  liberty  by  the  ruling  of  an  Restraint  of 
administrative  official,  whose  decisions,  if  made  as  the  result  of  orSo^an 
a  hearing,  the  courts  will  not  review.    The  most  notable  exam-  official 
pies  of  this  power  and  the  leading  cases  arise  from  the  enforce- 
ment of   Chinese   Exclusion   Laws  and  the  immigration  laws.  Chinese 
By  these  laws  officials  of  the  Department  of  Labor  are  given  UwsS1° 
the  power  to  determine  whether  the  immigrant  comes  within  the 
classes  whose  entry  is  prohibited.    If  so,  he  may  be  detained  and 
deported.    From  the  decision  of  the  subordinate  officer  appeals  lie 
to  the  Commissioner-General,  thence  to  the  Secretary  of  Labor. 
In  1905  this  power  was  most  broadly  sustained  by  the  decision 
in  the  case  of  United  States  v.  Ju  Toy,1  where  it  was  held  that  in  the  ju  Toy 
a  writ  of  habeas  corpus  should  not  be  granted  to  a  person  of  heidthaTa 
Chinese  descent  detained  for  return  to  China  after  he  had  been  Perfn  "Js" 

be  deported 

denied  admission  by  the   immigration  officers,  whose  decision  without  a 
had  been  affirmed  on  appeal  to  the  Secretary  of  Commerce  and 
Labor.    In  the  course  of  the  opinion  the  court  said  : 

If,  for  the  purpose  of  argument,  we  assume  that  the  Fifth  Amend- 
ment applies  to  him  and  that  to  deny  entrance  to  a  citizen  is  to  deprive 
him  of  liberty,  we  nevertheless  are  of  opinion  that  with  regard  to  him 
due  process  of  law  does  not  require  a  judicial  trial. 

This  decision  was  vigorously  combated  by  Justice  Brewer  and  has 
been  widely  criticized.  One  reason  for  the  criticism  was  the  fact  that 
the  lower  court  had  determined  that  the  petitioner  was  a  citizen 
and  had  granted  him  a  judicial  hearing.  As  Justice  Brewer  said  : 

It  will  be  borne  in  mind  that  the  petitioner  has  been  judicially  deter-  Dissenting 
mined  to  be  a  free-born  American  citizen,  and  the  contention  of  the  opini 
Government,  sustained  by  the  judgment  of  this  court,  is  that  a  citizen, 
guilty  of  no  crime  —  for  it  is  no  crime  for  a  citizen  to  come  back  to  his 
native  land  —  must  by  the  action  of  a  ministerial  officer,  be  punished 
by  deportation  and  banishment,   without  trial  by  jury  and  without 
judicial  examination. 

Such  a  decision  is,  to  my  mind,  appalling.2 

1  198  U.  S.  253,  263.  2  Ibid.  269. 


decide 
question 


Appeal  al- 
lowed from 
subordinate 
official  to 
head  of 
department 


238    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Point  at  issue  However,  as  Professor  Powell  points  out,  all  that  the  case 
wheth»  u  clearly  decided  was  that  it  may  be  finally  determined  by  officers 
official  or  the  of  administration  whether  a  Chinese  person  seeking  admission 
was  born  here  or  not.  Such  a  decision  was  absolutely  necessary 
if  there  was  to  be  any  limitation  upon  immigration  and  if  the 
courts  were  to  be  kept  free  for  their  own  proper  functions. 

Due  process  of  law  can  rightly  demand  no  more  than  that  the  pro- 
cedure devised  for  reaching  this  decision  give  to  the  individual  every 
opportunity  to  establish  his  rights,  consistent  with  maintaining  the 
orderly  and  efficient  administration  of  the  government.1 

It  must  not  be  thought,  however,  that  the  decisions  of  subor- 
dinate administrative  officials  or  even  heads  of  departments  are 
necessarily  final  and  never  subject  to  review  by  the  courts.  In 
the  first  place,  the  court  has  said  :"'...  The  official  duty  of  direc- 
tion and  supervision  .  .  .  implies  a  correlative  right  of  appeal .  .  . 
in  every  case  of  complaint,  although  no  such  appeal  is  expressly 
given."  2  Furthermore  such  appeals  are  generally  expressly  pro- 
vided for  by  statute.  It  must  be  noted,  moreover,  that  the  courts 
will  not  interfere  and  grant  relief  until  this  right  has  been  utilized 
and  the  decision  of  the  subordinate  has  been  sustained  by  the 
superior  officer. 

The  final  decision  of  the  head  of  a  department  or  of  the  pres- 
ident is  also  reviewable  by  the  court  under  certain  conditions. 
In  the  first  place,  the  jurisdiction  of  the  administrative  agent 
is  always  open  to  examination.  It  must  be  clearly  shown  that 
the  officer  or  department  deciding  the  case  has  received  such 
power  by  statute,  and  that  the  case  is  one  which  properly  falls 
within  the  terms  of  the  statute.  In  the  second  place,  the  courts 
will  determine  whether  the  administrative  agents  have  followed 
the  essential  principles  of  "  due  process  of  law."  As  has  been 
shown,  these  need  not  involve  a  judicial  examination  and  may  be 
satisfied  by  an  informal  hearing.  In  the  third  place,  although  wide 
discretionary  power  may  be  granted  to  officials,  their  decision 

1  American  Political  Science  Review,  Vol.  I,  pp.  582,  597. 

2  Butter-worth  v.  United  States,  112  U.  S.  50,  57.   In  this  particular  case  it  held 
that  appeal  from  the  decision  of  the  Commissioner  of  Patents,  in  certain  cases, 
lay  not  to  the  Secretary  of  the  Interior  but  to  the  Supreme  Court  of  the  District 
of  Columbia. 


Decision  of 
head  of 
department 
reviewable 
by  court  on 
questions  of 

(i)  jurisdic- 
tion 


(a)  hearing 


(3)  impar- 
tiality 


THE  ADMINISTRATION  239 

must  rest  upon  "  reason,  justice,  and  impartiality,  and  must  be 
exercised  in  the  execution  of  policies  predetermined  by  legislative 
act  or  fixed  by  common  law."  l    In  the  fourth  place,  the  courts  (4)  constitu- 
will  grant  relief  from  any  decision  of  an  administrative  officer 


contrary  to  the  Constitution,  common  law,  or  particular  statute,  which  official 

Certain  cases  will  make  some  of  the  points  clear.    It  was  held 

in  1902  that  a  fraud  order  could  not  be  issued  simply  upon  the  Decision  of 

Postmaster-General's  personal   judgment  as  to  the   fraudulent  befoundedSt 


character  of  the  business,  but  that  his  judgment  must  be  one  certained 
founded  on  fact  ascertained  by  evidence.2   In  1913  two  reversals  evidence  not 

upon  mere 

of  decision  of  the  Secretary  of  Commerce  brought  about  con-  opinion 
siderable  discussion  and  well  illustrate  the  control  which  may  be 
exercised  by  the  courts.     The  first  was  in  regard  to  General  official  must 
Castro,   the  former   president  of  Venezuela,   who  was  denied  incorrectly 
admission  by  the  immigration  officials  on  the  ground  that  he  castrocase 
had  murdered  General  Paredes.    The  statute  upon  which  the  offi- 
cial relied  excluded  persons  who  had  been  convicted  or  admitted 
having  committed  felony  or  other  misdemeanors  involving  moral 
turpitude.    The  courts  overruled  the  decision  of  the  secretary 
on  the  ground  that  as  General  Castro  had  never  been  convicted, 
"  the  only  proof  competent  for  the  immigration  authorities  to 
receive,  on  which  to  base  an  order  of  exclusion,  is  the  alien's 
own  admission,   nor  can  this  be  presumed   by  his  refusal  to 
answer  questions   put   to  him    by  the  immigration  authorities 
with  reference  to  such  alleged  crime."  3 

In  the  other  case,  Mylius,  who  had  been  convicted  of  criminal  Myiius  case 
libel  of  the  king  of  England,  was  denied  admission,  but  released 
on  the  following  grounds:  (i)  that  the  immigration  authorities 
acting  in  an  administrative  not  judicial  capacity  must  follow 
definite  standards  and  apply  general  rules  ;  (2)  criminal  libel, 
being  a  misdemeanor  at  common  law,  was  not  an  offense  involv- 
ing moral  turpitude  for  which  the  offender  should  be  excluded.4 

From  these  two  cases  it  will  be  seen  with  what  care  and  how 
strictly  the  courts  limit  the  conclusiveness  of  the  decisions  of 

i  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  II, 
p.  1293.  2  Amer.  School  of  Magnetic  Healing  v.  Me  Annuity,  187  U.  S.  94. 

3  United  States  ex  rel.  Castro  v.  Williams,  203  Fed.  Rep.  155. 

4  United  States  ex  rel.  Mylius  v.  Uhl,  203  Fed.  Rep.  152. 


Liability  of 
officials  for 


(i)  acts  not 
justified 
by  the  law  : 


(a)  personal 
acts  uncon- 
nected with 
official  duties 

(ft)  official 
acts  beyond 
the  law 


[Remedies  in 
the  hands  of 
the  courts] 


(a)  official 
acts  within 
the  law 


240    THE  GOVERNMENT  OF  THE  UNITED  STATES 

administrative  officials.  But  when  such  officials  act  within  limits 
laid  down  by  common  law,  the  Constitution,  and  statutes,  their 
decisions  are  final  and  not  subject  to  reversal  by  judicial  process. 

It  is  a  general  principle  of  both  English  and  American  law 
that  officials  possess  no  immunities  resulting  from  their  official 
positions.  Like  other  individuals  they  may  be  held  responsible 
for  their  acts.  They  may  be  sued  in  the  courts  and  compelled 
to  pay  damages  for  injuries  they  may  have  committed.  In  theory 
at  least  the  same  rules  of  law  are  applied  to  them  as  are  applied 
to  other  citizens.  Nevertheless,  the  growth  of  governmental 
activities  has  produced  certain  exceptions.  The  reasons  for 
these  exceptions  can  perhaps  best  be  seen  from  the  following 
classification  of  acts  of  officials. 

Acts  not  justified  by  law  include  (i)  purely  private  or  per- 
sonal acts  unconnected  with  official  duties.  For  acts  of  this 
sort  an  official  is  held  responsible  just  as  is  any  other  citizen.  He 
may  be  punished  for  a  crime  or  compelled  to  pay  damages  for  a 
tort.  For  example,  if  a  government  clerk  commits  theft,  assault, 
or  trespass,  the  fact  that  he  holds  an  official  position  in  no  way 
exempts  him  from  the  consequences  of  his  act.  (2)  A  second 
class  of  acts  not  justified  by  law  are  acts  performed  in  the  line 
of  official  duty  but  contrary  to  or  beyond  the  powers  granted  by 
the  statute.  For  these  acts  the  officer  is  also  liable.  The  person 
aggrieved  may  sue  him  in  the  court  and  may  be  awarded  damages. 
The  relief  given  to  the  injured  party,  however,  is  limited  by  the  re- 
sources of  the  official.  Damages  for  unlawful  acts  are  to  be  obtained 
not  from  the  state  but  from  the  person  performing  the  act. 

The  remedy  is  in  the  hands  of  the  courts.  The  courts  in- 
terpret the  law  and  determine  the  jurisdiction  of  the  officers. 
Thus  every  act  of  every  official,  in  theory  at  least,  may  be  review- 
able  by  the  courts.  But,  as  has  been  shown,  the  question  to  be 
decided  by  the  court  is  simply  one  of  jurisdiction.  If  the  court 
holds  that  the  act  was  within  the  powers  granted  by  the  law, 
the  official  is  relieved  from  all  personal  liability  for  damages. 

Official  acts  performed  within  the  terms  of  the  statute  are 
of  two  sorts:  (i)  acts  involving  discretion  or  judgment  and 
(2)  purely  ministerial  acts  involving  no  discretion  or  judgment 
upon  the  part  of  the  official.  The  courts  will  take  no  cognizance 


THE  ADMINISTRATION  241 

of  the  first  class.  Officials  have  been  appointed  or  selected  to  (a)  Discre- 
use  their  judgment,  and  the  courts  cannot  substitute  their  opinion 
for  the  discretion  of  the  official.  Neither  will  the  courts  award 
damages  either  against  the  official  or  the  state  for  unwise  or 
mistaken  use  of  official  discretion.  The  only  appeal  is  to  the 
political  department  of  the  government.  Congress  may  appro- 
priate money  by  way  of  relief  directly  or  may  refer  the  deter- 
mination of  the  question  to  the  Court  of  Claims.  In  either  case 
the  pecuniary  relief  comes  not  from  the  legal  decree  of  a  court 
but  from  the  political  action  of  Congress. 

Ministerial  acts  involving  no  discretion  are  reviewable  by  the  (6)  Minis- 
courts.    For  a  wrongful  act  of  this  sort  the  court  will  award  dam-  review^ 
ages.    But  it  must  be  clearly  shown  that  the  party  aggrieved  has, 
as  an  individual  not  merely  as  a  part  of  the  general  public,  a  right 
to  have  the  act  performed.    Thus,  a  United  States  marshal  is  not 
responsible  for  the  damages  suffered  by  an  individual  resulting  from 
the  failure  of  the  marshal  to  keep  the  peace.   On  the  other  hand, 
where  the  individual  has  a  private  interest  in  the  performance  of 
the  act  the  court  will  grant  damages  for  its  nonperformance  and 
compel  the  official  to  perform  it. 

Exceptions  of  certain  officers* are  made  for  the  convenience  Exceptions: 
of  administering  the  government.    The  president,  like  the  king  (i)  The  presi- 
of  England,  is  never  held  personally  liable  nor  subject  to  judicial  d 
summons,  although  he  may  be  impeached  and  removed  from 
'office.     In    like    manner    it   was    held    in   Kendall  v.   Stokes1 
that  the   head    of   a    department   was   not   liable   for  damages  (2)  Heads  of 
resulting  from  an  error  in  judgment  on  his  part.    These  excep- 
tions, however,  lose   much  of  their  apparent  force  when  it  is 
remembered  that  neither  the  president  nor  the  heads  of  depart- 
ments perform  many  acts  unassisted  by  subordinates.    Almost 
every  official  act  is  the  actual  act  of  a  subordinate,  and  for  that 
act  the  subordinate  may  be  held  responsible  in  accordance  with 
the  principles  just  discussed.    Hence  it  is  apparent  that  judicial 
control  and  legal  liability  are  never  very  far  removed.2 

1  3  How.  87. 

2  For  further  treatment  see  F.  J.  Goodnow,  Principles  of  Administrative  Law 
in  the  United  States,  pp.  383-409 ;  W.  W.  Willoughby,  The  Constitutional  Law 
of  the  United  States,  Vol.  II,  pp.  1309-1316. 


CHAPTER  X 


cont2nteint8 
changing 


THE  ORGANIZATION  AND  FUNCTIONS  OF  THE 
EXECUTIVE  DEPARTMENTS1 

organization  To  give  in  full  an  account  of  the  work  of  the  executive  de- 
partments  of  the  government  would  entail  writing  an  exhaustive 
anci  encyclopedic  description  of  the  manifold  operations  of  the 
government.  To  be  complete  and  accurate  this  would  involve 
detailed  quotations  from  numerous  statutes,  not  merely  those 
which  prescribe  the  functions  of  each  department  but  the  ap- 
propriation bills  which  are  constantly  prescribing  changes  and 
new  duties.  Even  this  description  would  soon  be  inadequate,  for 
the  government  is  not  static,  and  changes  in  organization  are 
constantly  being  made  and  new  functions  constantly  being  added. 
Only  the  volumes  of  the  Statutes  at  Large  and  the  annual  com- 
pendious official  summaries  can  give  an  adequate  picture  of  the 
actual  conditions  and  operations.  Nevertheless,  it  is  advisable 
to  give  some  idea  of  the  outlines  of  departmental  organization 
and  the  chief  duties  of  the  various  main  departments,  together 
with  a  brief  account  of  some  of  the  more  important  detached 
and  -miscellaneous  bureaus.  Even  in  this  outline  it  should  be 
remembered  that,  since  the  passage  of  the  Overman  Act,  the 
president  has  been  allowed  to  transfer  and  change  the  duties 
of  the  various  departments  and  bureaus  as  the  necessities  of 
the  late  war  might  demand.  The  ending  of  the  war  brought 
about  changes  in  departmental  organization  which  will  probably 
be  followed  by  still  further  readjustments.  The  conditions  and 
duties  here  described,  however,  are  those  which  normally  exist 
in  time  of  peace,  although  some  of  the  more  important  changes 
made  necessary  by  the  war  are  indicated. 

1  See  J.  A.  Fairlie,  The  National  Administration  of  the  United  States;  The 
Congressional  Directory  ;  H.  C.  Gaus,  The  American  Government,  Organization 
and  Officials,  with  the  Powers  and  Duties  of  Federal  Office  Holders  (an  extensive 


compilation). 


242 


EXECUTIVE  DEPARTMENTS  243 

THE  ADMINISTRATIVE  ORGANIZATION  OF  THE  EXECUTIVE 
DEPARTMENTS  1 

The  administrative  organization  of  the  ten  executive  depart-  Heads  of 
ments  is  substantially  the  same.    In  each  there  is  a  head  of  the 
department  known  as  the  secretary,  except  that  the  Department 
of  Justice  and  the  Post-Office  Department  are  presided  over  by  purely  poiiti- 

J    cal  offices 

chiefs  known  as  the  Attorney-General  and  Postmaster-General, 
respectively.  These  officials  —  the  cabinet  officers  —  are  ap- 
pointed by  the  president,  with  the  advice  and  consent  of  the 
Senate,  and  receive  an  annual  salary  of  twelve  thousand  dollars. 
Each  secretary  is  aided  by  one  or  more  assistant  secretaries. 
These  offices  are  regarded  as  purely  political  ones,  and  the  holders 
usually  change  with  the  administration  or  even  with  the  head  of 
the  department.  An  exception  should  be  noted  in  the  case  of  the 
Second  Assistant  Secretary  of  State,  a  position  which  William 
Hunter  held  for  twenty  years,  and  which  has  been  occupied  by 
A.  A.  Adee  since  1886. 

The  departments  are  divided  by  statute  into  bureaus  and  divi-  Bureaus  and 
sions  to  which  definite  functions  are  assigned.     The  heads  of  c 
these  subdivisions,  sometimes  called  commissioners  (Pensions, 
Patents,  etc.),  or  directors  (Mint,  Census),  or  comptrollers  (Treas 
ury,  Currency),  together  with  the  military  and  naval  officers  at 
the  head  of  the  bureaus  in  the  War  and  Navy  Departments,  are 
charged  with  statutory  duties,  and  thus  are  somewhat  more  inde- 
pendent of  the  heads  of  the  departments  than  are  the  assistant  sec- 
retaries.   These  offices  are  not  classified  as  "inferior,"  appoint-  chief  of 
able  by  the  heads  of  the  department,  but  are  nominated  by  the 
president  and  confirmed  by  the  Senate.    The  tenure  of  office  in  officers 
many  of  the  important  bureaus,  however,  is  far  more  stable  than 
that  of  the  assistant  secretaries,  particularly  in   those  bureaus 
involving  great  technical  or  scientific  knowledge.     Bureaus  are 
subdivided  into  divisions,  although  in  some  departments  this  term 
is  applied  to  a  unit  of  higher  grade,  presided  over  by  a  chief  of 
division.    In  each  department  and  in  many  bureaus  there  is  a 

1  See  J.  A.  Fairlie,  The  National  Administration  of  the  United  States,  chap,  v  ; 
F.  J.  Goodnow,  Comparative  Administrative  Law,  and  also  Principles  of  the 
Administrative  Law  of  the  United  States. 


chief  cierk 


single-beaded 


Exceptions 


Federal  em- 


contrast 


244    THE  GOVERNMENT  OF  THE  UNITED  STATES 

chief  clerk  who  has  charge  of  the  details  of  the  unit  and  is 

responsible  for  the  management  of  the  subordinate  employees. 

Thus,  in  the  hierarchy  of  officers  the  general  principle  is  to 

Place  at  the  head  of  each  ^"ade  a  single  official  responsible  to 
the  official  immediately  above  him.  While  this  is  characteristic 
of  the  executive  departments,  the  board  organization  is  found  in 
some  of  the  bureaus  not  attached  to  any  department.  The  most 
prominent  examples  of  this  exceptional  method  of  organization 
are  the  Interstate  Commerce  Commission,  the  Civil  Service  Com- 
mission, the  Federal  Reserve  Board,  and  the  Federal  Trade 
Commission.  The  World  War,  however,  greatly  increased  this 
type  of  organization,  of  which  the  Shipping  Board  and  the  War 
Trade  Board  may  be  taken  as  examples. 

In  addition  to  the  secretaries,  officers,  and  employees  at  Wash- 
ington  there  are  local  officers,  agents,  and  employees  scattered 
all  over  the  country,  making  a  total  of  over  five  hundred 
thousand  in  all.1  Of  this  number  the  Post-Office  Department 
controls  over  three  hundred  thousand,  the  Treasury  over  thirty 
thousand,  and  the  Department  of  Agriculture  nearly  twenty  thou- 
sand. This  multitude  of  officials  and  employees  is  engaged  solely 
in  the  work  of  administering  the  affairs  of  the  national  govern- 
ment, and  conversely  all  the  affairs  of  the  national  government 
are  administered  by  federal  —  not  state  or  local  —  officials  and 
employees.2  This  method  is  in  sharp  contrast  to  that  established 
in  the  former  German  empire  where,  although  the  principle  of 
imperial  legislation  was  adopted,  the  administration  was  to  a  large 
extent  decentralized  and  in  the  hands  of  officials  appointed  by 
the  state  governments.  It  also  differs  somewhat  from  the  method 
followed  by  the  states,  where  locally  chosen  officials  administer 
to  a  large  extent  the  laws  of  the  state.3  The  result  of  the 
American  system,  which  was  perhaps  adopted  as  a  reaction 
against  the  inefficiency  and  ill-success  of  the  decentralized  sys- 
tem attempted  under  the  Articles  of  Confederation,  is  a  great 

1  This  figure  does  not  include  the  military  or  naval  services,  nor  the  em- 
ployees of  the  railroads  which  the  government  took  over  in  1918. 

2  A  most  significant  exception  to  this  principle  was  found  in  the  statute 
authorizing  the  president  to  make  the  draft,  by  which  he  was  given  the  authority 
to  utilize  the  services  of  state  and  local  officials. 

8  City  Boards  of  Health,  School  Committees,  Police,  Assessors,  etc. 


EXECUTIVE  DEPARTMENTS  245 

centralization  of  power.  Through  the  interstate  clause  of  the  Con-  Effect  of  such 
stitution  federal  control  and  federal  supervision  has  been  greatly  system^1 
extended  into  many  fields  which  were  formerly  considered  purely 
the  concern  of  the  states.  State  supervision  has  consequently 
decreased,  through  the  growth  of  federal  activity.  The  centralized 
organization  of  the  federal  civil  service  facilitates  the  administra- 
tion of  these  activities.  At  the  same  time  it  offers  a  dangerous 
but  inviting  field  for  political  influence,  .to  be  exercised  through 
them,  not  merely  in  favor  of  particular  candidates  but  also  to 
popularize  and  accelerate  the  adoption  of  particular  measures 
desired  by  the  administration. 

THE  DEPARTMENT  OF  STATE  l 

The  Department  of  State  was  first  organized  as  the  Depart-  composite 
ment  of  Foreign  Affairs  ;  but  was  later  given  some  of  the  duties  Department6 
which  are  ordinarily  performed  in  other  countries  by  the  Home  of  state 
Secretary  or  Secretary  of  the  Interior.  Its  functions  as  the 
medium  for  the  conduct  of  foreign  affairs  and  the  organization  of 
the  diplomatic  and  consular  services  are  treated  in  the  chapter  on 
"Foreign  Affairs."2  Nevertheless,  certain  features  of  the  organ- 
ization should  be  explained.  The  Counselor  for  the  Department, 
formerly  a  legal  adviser,  now  outranks  the  Assistant  Secretaries, 
and  becomes  Acting  Secretary  in  the  absence  of  the  Secretary. 
His  duties  are  now  no  longer  chiefly  legal,  since  he  is  charged 
with  the  supervision  of  such  matters  and  correspondence  as  the 
Secretary  may  assign  him.3  The  Division  of  Foreign  Intelligence 
is  charged  with  the  publicity  work  of  the  department.  It  pre- 
pares news  items  for  the  press,  and  issues  information  to  diplo- 
matic and  consular  officers,  and  information  for  publication  abroad. 

1  The  Department  of  State  is  organized  as  follows :  the  Secretary  of  State, 
the  Undersecretary  of  State,  the  Assistant  Secretary  of  State,  the  Second 
Assistant  Secretary,  the  Third  Assistant  Secretary,  the  Chief  Clerk,  the  So- 
licitor and  five  assistant  solicitors,  Adviser  for  Foreign  Trade,  Adviser  on 
Commercial  Treaties;  seven  bureaus  —  Accounts,  Appointments,  Citizenship, 
Consular,  Diplomatic,  Indexes  and  Archives,  Rolls  and  Library ;  five  divisions 
—  Far  Eastern  Affairs,  Latin-American  Affairs,  Near  Eastern  Affairs,  Mexican 
Affairs,  Western  European  Affairs.  2  Chapter  XXI. 

3  The  Counselor  for  the  Department  was  abolished  by  the  Sixty-fifth  Congress 
and  the  office  of  Undersecretary  of  State  created. 


246    THE  GOVERNMENT  OF  THE  UNITED  STATES 

It  also  prepares  and  publishes  the  Information  Series  and  the 

Foreign  Relations  of  the  United  States. 

Bureaus  of          The  Bureau  of  Appointments  has  custody  of  the  Great  Seal, 
the  Depart-      h    preparation  of  commission,  etc.    The  Bureau  of  Citizenship 

nicnt  of  otcitc  .  .  -i         -pj 

examines  the  applications  for  and  issues  passports,  the  Bureau 
of  Rolls  and  Library  has  custody  of  the  rolls  and  treaties,  and 
promulgates  the  laws,  treaties,  executive  orders,  and  proclama- 
tions, and  so  forth.  The  Bureau  of  Indexes  and  Archives 
receives  and  indexes  all  the  letters  and  communications  of  the 
department. 

THE  DEPARTMENT  OF  THE  TREASURY1 

Difference  in        The  organization  of  the  Treasury  shows  a  departure  from  that 

o?oegyhol "he    of  most  of  the  other  departments.   The  organic  statute  omits  the 

fnCt  thfoe2-"    word  "executive"  and  all  references  to  the  dependence  of  the 

£rtmentof     secretary  upon  TKS— president,   and   requires   the   Secretary  of 

the  Treasury  lo^report  directly  to  Congress:    Nevertheless,  the 

president  through  his  power  of  appointment  and  removal  can 

enforce  his  will  upon  the  Secretary  of  the  Treasury  as  well  as 

upon  the  secretaries  of  the  other  departments. 

Many  of  the  normal  functions  of  the  Treasury  Department 
in  connection  with  the  collection  of  the  taxes,  the  payment  of 
money,  the  coining  of  money,  and  the  banking  system  are  dis- 
cussed in  the  chapter  on  "  Finance."  2  But  the  Treasury  Depart- 
ment from  the  first  has  had  jurisdiction  over  numerous  matters 
not  closely  connected  with  finance ;  and  some  of  these,  together 
with  certain  financial  functions  of  the  department,  should  be 
explained. 
The  comp-  The  Comptroller  of  the  Treasury  prescribes  rules  for  the  keep- 

trollerofthe      .  .      .  r     .  .  ,.  ,        .  ,       . 

Treasury        ing  and  rendering  of  the  public  accounts,  is  charged  with  the 

1  The  Department  of  the  Treasury  is  organized  as  follows :  the  Secretary  of 
\he  Treasury,  five  assistant  secretaries  of  the  Treasury,  the  Chief  Clerk,  the 
(Comptroller  of  the  Currency,  the  Treasurer  of  the  United  States,  the  Commis- 
/sio'ner  of  Internal  Revenue,  Director  of  the  Mint,  Comptroller  of  the  Treasury ; 
six  auditors  for  the  various  departments  ;  Register  of  the  Treasury  ;  eight  divi- 
sions —  Appointments,  Bookkeeping  and  Warrants,  Customs,  Loans  and  Cur- 
rency, Mail  and  Files,  Printing  and  Stationery,  Public  Moneys,  Secret  Service ; 
the  Federal  Farm  Loan  Board ;  Bureau  of  Engraving  and  Printing ;  Bureau  of 
Public  Health  Service ;  the  Coast  Guard ;  Supervising  Architect's  Office ;  Bureau 
of  War-Risk  Insurance  ;  General  Supply  Committee.  2  Chapter  XVIII. 


EXECUTIVE  DEPARTMENTS  247 

duty  of  revising  the  accounts  of  the  auditors,  and  is  required 
to  approve,  disapprove,  or  modify  all  decisions  of  the  auditors 
making  original  constructions  of  statutes.  He  is  the  final  court 
of  appeal  as  far  as  an  administrative  officer  can  be  in  the  matter 
of  accounts. 

The  Federal  Farm  Loan  Board  is  charged  with  the  adminis-  Federal  Farm 
tration  of  the  Federal  Farm  Loan  Act.    It  establishes  the  twelve  Loan  Board 
land  banks,  appoints  temporary  directors,  and  supervises  their 
operations.    It  makes  appraisal  of  farm  lands  and  prepares  and 
publishes  amortization  tables.     It   supervises    the  operation  of 
national  farm  loan  associations  and  joint-stock  land  banks. 

The  Federal  Farm  Loan  Act  was  planned  to  enable  the  farmers  The  Federal 
to  borrow  money  at  more  reasonable  rates  than  they  had  been  Ict^f^e 
doing.  When  it  is  remembered  that  in  1910  over  a  third  of 
the  farms  operated  by  owners  were  mortgaged,  that  a  large 
part  of  the  loans  \vere  for  short  periods,  and  that  the  interest  and 
commissions  ranged  from  5.3  per  cent  to  10.5  per  cent,  the  need 
for  some  aid  or  regulation  becomes  apparent.  The  federal  land 
banks  loan  money  not  directly  to  the  farmers  but  to  farm  loan 
associations  which  are  expected  ultimately  to  own  the  stock  of 
the  land  bank,  for  these  associations  are  required  to  subscribe 
to  the  capital  stock  of  the  land  bank  to  the  amount  of  5  per 
cent  of  each  loan  taken.  The  bank  may  lend,  through  the  asso- 
ciation's money,  upon  first  mortgages  from  $100  to  $10,000,  pro- 
vided that  no  loan  be  for  more  than  50  per  cent  of  the  value  of  the 
land  and  20  per  cent  of  the  permanent  improvements  upon  it. 

The  Bureau  of  Public  Health  Service  conducts  scientific  in-  Bureau  of 
vestigations,  disseminates  information,  enforces  national  quaran- 
tine  laws,  and  cares  for  sick  and  disabled  seamen  at  twenty-two 
marine  hospitals. 

The  Coast  Guard  renders  assistance  to  vessels  in  distress,  coast  Guard 
destroys  or  removes  wrecks,  derelicts,  and  other  floating  dangers 
to  navigation,  extends  medical  aid  to  American  vessels  engaged 
in  deep-sea  fishing,  protects  the  customs  revenue,  enforces  the 
law  and  regulations  governing  anchorage  of  vessels,  quarantine, 
and  neutrality,  and  aids  in  suppressing  any  mutinies. 

The  Supervising  Architect  prepares  the  plans  for  construct-  supervising 
ing,  rebuilding,  repairing,  and  enlarging  all  federal  buildings.  Archltect 


General 

Supply 
Committee 


Secretary  of 
War,  usually 
a  civilian, 
has  charge  of 


(i)  military 
affairs 
(a)  construc- 
tion of  public 
works 

(3)  river  and 
harbor  im- 
provement 

(4)  insular 
possessions 


The  General 
Staff 


248    THE  GOVERNMENT  OF  THE  UNITED  STATES 

In  addition,  he  secures  the  cession  from  states  of  the  jurisdiction 
over  sites  and  the  payment  for  the  same. 

The  General  Supply  Committee  is  composed  of  one  officer 
from  each  department,  and  is  charged  with  making  an  annual 
estimate  of  the  supplies  needed  by  all  the  departments,  the 
standardization  of  such  supplies,  and  the  soliciting  of  bids  for 

the  same. 

THE  DEPARTMENT  OF  WAR1 

The  Department  of  War  is  peculiarly  subject  to  the  president, 
for  not  only  is  it  an  executive  department,  but,  as  the  presi- 
dent is  commander  in  chief  of  the  army,  he  may  make  regula- 
tions and  issue  orders  independently  of  Congress.  The  Secretary 
of  War,  almost  invariably  a  civilian,  and  in  the  recent  adminis- 
trations a  lawyer,  is  charged  not  merely  with  the  management 
of  military  affairs,  but  with  the  construction  ofjublic  works,  the 
improvement  j)f_  rivers  ^and  harbors,  and,  since  the  War  with 
Spain,  with  the  administration  of  the  Philippines  and  ourjnsular 
possessions.  During  certain  administrations  considerable  friction 
has  arisen  between  the  general  commanding  the  army  and  the 
civilian  secretary.  To  remedy  this,  as  well  as  to  bring  the  depart- 
ment to  a  higher  state  of  efficiency  than  was  disclosed  by  the 
War  with  Spain,  Secretary  Root  in  1903  procured  legislation 
reorganizing  the  department  and  creating  the  General  Staff. 
The  General  Staff  is  composed  of  officers,  of  all  grades  above 
lieutenants,  detailed  by  the  orders  of  the  president  for  terms  of 
four  years.  The  duties  of  the  Gener^gtaff  are  to  prepare  plans 
for  nation^defejise  and  for  the  mobilization^ of 'jheJorc^ofthQ 
United  States,  to  make  recommenSations  f oF Increasing  the 
efficiency  ofthearmy,  and  to  give  professional  advice  to 
the  Secretary  of\Var  and  to  the  officers  of  the  army. 

The  complicated  administration  of  the  department  is  con- 
ducted by  bureaus  and  offices,  whose  titles  in  general  indicate  the 

1  The  Department  of  War  is  organized  as  follows  :  Secretary,  Assistant  Sec- 
retary, Assistant  and  Chief  Clerk;  five  divisions  — Correspondence,  Mail  and 
Record,  Requisitions,  Supply,  Telegraph  ;  the  General  Staff  ;  Office  of  the  Chief 
of  Coast  Artillery  ;  eleven  military  bureaus  —  Adjutant  General,  Inspector  Gen- 
eral, Judge-Advocate-General,  Quartermaster-General,  Surgeon-General,  Chief 
of  Engineers,  Chief  Signal  Officer,  Chief  of  Ordnance,  Militia  Bureau;  the 
Bureau  of  Insular  Affairs ;  Board  of  Ordnance  and  Fortification. 


EXECUTIVE  DEPARTMENTS  '249 

duties  assigned  them.1  Two  bureaus,  however,  should  be  more  fully 
explained,  as  they  deal  with  work  which  is  not  of  military  character. 

The  Corps  of  Engineers  is  charged  not  merely  with  the  duties  corps  of 
which  wouIH^n^turaTI}rbelong  to  such  a  bureau  —  that  is,  the  con- 
struction of  fortifications,  military  bridges,  and  the  like  —  but  also 
with  the  vast  works  which  are  undertaken  in  the  improvement  of 
rivers  and  harbors  and  with  the  construction  of  dams  and  reservoirs 
connected  with  the  reclamation  policy  of  the  government.    The 
most  spectacular  and  important  piece  of  work  has  been  the  con- 
struction of  the  Panama  Canal.    The  work  upon  this  was  initi- 
ated under  private  engineers,  several  of  whom  resigned,  feeling 
themselves  unable  to  continue  the  work  under  the  conditions 
imposed  by  the  government.     President  Roosevelt  then  trans- 
ferred the  work  to  the  Department  of  War  and  made  Colonel 
Goethals,  one  of  the  engineer  corps,  head  of  the  Canal  Com-  The  Panama 
mission  and  in  charge  of  all  the  work  of  construction  and  the  commission 
government  of  the  zone.    In  spite  of  the  fact  that  the  plans  of 
the  canal  were  changed  and  the  work  enlarged,  the  construction 
was  completed  before  the  time  set,  and  the  Canal  opened  for 
merchant  vessels  a  year  before  the  formal  opening  was  originally 
planned.    Connected  with  the  Corps  of  Engineers  is  the  Board  Board  of 
of  Engineers  for  Rivers  and  Harbors.    This  is  a  permanent  body  f0°^ivers 
created  by  the  act  of  1902.    To  it  are  .referred  all  reports  upon  andHarbors 
examinations  and  surveys  provided  for  by  Congress,  and  all  proj- 
ects or  changes  in  projects  for  work  on  rivers  and  harbors  upon 
which  a  report  is  desired  by  the  Chief  of  Engineers.    The  inten- 
tion was  to  make  this  an  advisory  body  to  check  and  prevent 
the  extravagant  undertakings  suggested  to  Congress.     Should 
Congress  follow  its  recommendations  much  would  be  accom- 
plished, but  .too  often  political  and  personal  considerations  weigh 
more  than  the  recommendations  of  the  Board. 

The  Bureau  of  Insular  Affairs  was  an  outgrowth  of  the  acqui-  Bureau  of  m- 
sition  of  the  territory  from  Spain  in  1898.    It  is  charged  with  all 
matters  pertaining  to  the  civil  government  of  the  insular  posses- 
sions of  the  United  States,  assigned  to  the  War  Department. 

1  The  Bureau  of  the  Adjutant  General  is  charged  with  records,  orders,  regu- 
lations, and  instructions  ;  the  Judge-Advocate's  office  is  charged  with  the  review 
of  courts-martial  and  legal  proceedings ;  the  duties  of  the  others  are  obvious. 


The  Attor- 
ney-General 
the  legal  ad- 
viser of  the 
president 
and  the  ad- 
ministration 


250    THE  GOVERNMENT  OF  THE  UNITED  STATES 

At  present  it  has  charge  of  the  Philippines  and  Porto  Rico. 
The  Bureau  receives  the  records  of  the  civil  government,  acts 
as  comptroller  in  reviewing  the  receipts  and  expenses,  attends 
to  the  purchases  and  supplies  for  those  governments,  and  has 
charge  of  the  appointments  of  persons  in  the  United  States  to 
the  Philippine  civil  service  and  'arranges  their  transportation. 

THE  DEPARTMENT  OF  JUSTICE  l 

The  office  of  Attorney-General  of  the  United  States  was  cre- 
ated by  the  Judiciary  Act  of  1789,  although  for  several  years  the 
duties  did  not  require  all  the  time  of  the  incumbent  and  he  was 
allowed,  if  not  expected,  to  engage  in  private  practice.  Although 
the  Attorney-General  was  included  by  Washington  in  the  num- 
ber of  those  who  were  his  cabinet  advisers,  the  Department  of 
Justice  was  not  organized  until  1870. 

The  functions  and  duties  of  the  Attorney-General  and  the 
Department  of  Justice  are  fourfold:  (i)  The  Attorney-General 
is  the  legal  adviser  not  merely  of  the  president  but  of  the  admin- 
istration. As  such  he  is  frequently  called  upon  to  give  his  opin- 
ion on  questions  concerning  the  const£uctionpj__tli£_C£>nstitution 
and  of  the  laws,  not  only  to  the  president  ~butto  the  heads  of 
the  dep^Uuwul^jiyvefl'.  These  opinions  involve  a  douBle~crTar- 
acter  :  they  are  quasi- judicial  rulings,  and  they  also  very  frequently 
determine  the  political  policy  of  the  administration .  As  quasi- 
judiaal  "rulings  th6  opinionrTJrEETBepartment  "  .  .  .  officially 

1  The  Department  of  Justice  is  organized  as  follows :  the  Attorney-General, 
the  Solicitor-General,  the  Assistant  to  the  Attorney-General,  six  Assistant 
Attorneys-General,  Assistant  Attorney-General  for  customs  division,  Special 
Assistant  to  the  Attorney-General  for  war  work,  Chief  Clerk,  Chiefs  of  the  divi- 
sions of  Accounts  and  Investigation,  Superintendent  of  Prisons,  seven  solicitors 
for  the  various  departments.  In  Washington  there  are  over  fourteen  hundred 
positions  in  the  Department,  of  which  only  two  hundred  and  fifty-six  are  competi- 
tive, while  over  three  hundred  are  noncompetitive  and  over  eight  hundred  presi- 
dential. Outside  of  Washington  there  are  over  twenty-seven  hundred  positions, 
of  which  only  about  six  hundred  are  competitive.  The  reason  for  the  large 
proportion  of  noncompetitive  positions  is  probably  because  of  the  high  grade 
of  professional  skill  required,  the  intimate  connection  of  the  duties  with  the 
political  policy  of  the  administration,  and  the  confidential  nature  of  the  work. 
It  must  be  admitted,  however,  that  the  United  States  marshals,  and  their  subor- 
dinates, have  neither  confidential  nor  professional  work  to  perform,  but  are  very 
frequently  purely  political  appointees. 


EXECUTIVE  DEPARTMENTS  251 

define  the  law,  in  a  multitude  of  cases,  where  his  decision  is  in  The  opin- 

practice  final  and  conclusive  —  not  only  as  respects  the  action  of  Attorney-6 

public  officers  in  administrative  matters,  who  are  thus  relieved  definiTthe 

from  the  responsibility  which  would  otherwise  attach  to  their  law  and  in 

f        .  .  many  in- 

acts,  but  also  in  qiip.sf.inn5}  of  priygtejights,  inasmuch  as  parties  stances  are 
having  concerns  with  the  government  possess  in  general  no 
means  of  bringing  a  controverted  matter  before  the  courts  of  law, 
and  can  obtain  a  purely  legal  decision,  of  the  controversy,  as 
distinguished  from  an  administrative  one,  only  by  reference  to 
the  Attorney-General.  Accordingly,  the  opinions  of  successive 
Attorneys-General  .  .  .  have  come  to  constitute  a  body  of  legal 
precedents,  having  authority  the  same  in  kind,  if  not  the  same 
in  degree,  with  the  decisions  of  the  courts  of  justice."  l  In  other 
words,  the  opinions  of  the  Attorney-General  interprpf^riie  Con- 
stitution and  statutes  of  the  Um'tec]  fttat^g  ^  far  as  the  action 
of  the  officers  thereof  is  concerned.  To  him  are  referred  doubtful 
points  and  questions  of  jurisdiction,  and  the  action  of  the  officials 
is  governed  by  his  ruling.  In  addition,  as  the  above  quotation 
shows,  his  opinion  often  affects  private  rights.  It  has  been 
pointed  out  that  the  government  of  the  United  States  can  be 
sued  only  with  its  own  consent  and  that  the  jurisdiction  of  the 
Court  of  Claims  is  very  restricted ;  hence  the  opinion  of  the 
Attorney-General  is  often  the  only  legal  decision  which  a  pri- 
vate individual  can  obtain.  "  The  Supreme  Court  will  not  enter- 
tain an  appeal  from  his  decision,  nor  revise  his  judgment  in 
any  case  where  the  law  authorized  him  to  exercise  his  discretion 
or  judgment."2 

These  opinions,  although  quasi- judicial  in  their  nature,  often  The  opinions 
have  great  effect  in  determining  the  poHUcal  policy  oL  the  gov-  Attomey- 
ernment.     For-£xample,   officials  of   the    United   States   Steel  ^SnT7 
Corporation  obtained  from  the  Attorney-General  through  Presi-  the  political 

.  &  policy  of  the 

dent  Roosevelt  the  informal  opinion  that  the  acquisition  01  one  government 
of  their  competitors  was  not  in  violation  of  the  laws  prohibit- 
ing restraint  of  trade.    This  opinion  was  adopted  by  President 
Roosevelt,  no  action  being  taken  against  the  corporation  during 

1  J.  A.  Fairlie,  The  National  Administration  of  the  United  States,  pp.  166, 167, 
quoting  opinions. 

2  Ibid.  p.  167,  quoting  from  6  Atty-Gen.  Opin.  346. 


252    THE  GOVERNMENT  OF  THE  UNITED  STATES 

his  administration ;  and  this  also  served  to  indicate  the  political 
attitude  of  the  government.    President  Taft,  however,  followed 
different  advice,  and  his  Attorney-General  instituted  a  suit  against 
the  Steel  Corporation. 
The  Attorney-      (2)  The  Attorney-General  is  the  chief  advocate  of  the  govern- 
ment.    As  suchhe  Eas  supervision  over  all  suits  to  which  the 
United  States  is  a  party.    In  the  lower  courts,  the  conduct  of  the 
ducts  suits  to  cases  is  usually  intrusted  to  the  local  district  attorney  of  the  judi- 
umted  states  cial  district  in  which  the  suit  is  commenced  ;  and  until  the  cases 
reach  the  Supreme  Court  or  the  Court  of  Claims  the  Attorney- 
General's  office  only  gives  supervision  and  direction.    Cases  in 
the  Supreme  Court  and  the  Court  of  Claims,  however,  are  con- 
r-  ducted  by  the  Attorney-General  or  some  of  his  assistants.    After 
the  Attorney-General,  the  most  important  officer  in  the  depart- 
ment is  the  Solicitor-General.    He  acts  in  the  absence  of  the 
Attorney-General  and  has  general  charge  of  the  preparation  of 
suits  before  the  courts. 

Gene^aiTheey"      ^^e  Attorney-General  and  the  district  attorneys  are  also  the 
prosecuting  officers  of  the  United  States.    They  conduct  criminal 
r   prosecution  for  violations  of  the  laws  of  the  United  States,  par- 
ticularly those  relating  to  banking,  currency,  and  revenue.    In 
recent  years,  however,  the  activity  of  the  government  has  been 
so  widely  extended,  and  different  departments  have  been  charged 
with  so  many  specific  duties,  that  special  solicitors  are  assigned 
t0  theSC  dePartments-    This  is  particularly  true  with  regard  to 
the   laws  prohibiting  monopoly — the  anti-trust  laws.    As    has 
been  shown,  there  has 'beteh  a  difference  of  opmiori  concerning 
their  interpretation   and  application ;   but  during  the  adminis- 
trations of  Presidents  Taft  and  Wilson  suits  have  been  brought 
to  a  successful  conclusion  against  some  of  the  largest  corpora- 
tions in  the  country.   The  conduct  of  these  is  under  the  direc- 
tion of  the  Attorney-General's  office,  but  the  preparation  of  the 
suit,  the  preliminary  investigations,  and  the  trial  in  the  lower 
courts  are  frequently  assigned  to  attorneys  especially  employed 
for  the  purpose. 

(3)  The  Department  of  Justice  is  charged  with  supervision 
the  prosecuting  and  executive  officers  of  the  United 
courts;  that  is,  with  the  district  attorneys  and  marshals. 


EXECUTIVE  DEPARTMENTS  253 


the   head   of   the   judicial    department   in    England,  the    Lord 
Chancellor,  the  Attorney-General   has  no  official  voice  in  the 
selection  of  the  judges  and  certainly  no  control ;  but  over  the  The  Attor- 
assistant  attorneys  and  the  district  attorneys  he  has  the  same  Jas  control * 
control  that  is  exercised  by  the  heads  of  other  departments.    He  ?f  the  assis' 

J  *  tant  attor- 

thus  has  considerable  voice  in  the  distribution  of  a  large  amount  neys  and 
of  patronage.    When  it  is  remembered  that  the  majority  of  the  attorneys 
officers  in  the  department  are  presidential  —  that  is,  appointed 
by  the  president  upon  confirmation?  by  the  Senate  —  and  are  not 
competitive  or  classified,  it  will  be  seen  that  the  influence  of  the 
Attorney-General  may  be  felt  in  matters  which  are  legal  or  judi-  Political 
cial.    It  is  in  this  department  that  the  Democratic  administration  impor1 
of  1912  made  one  of  its  boldest  attacks  upon  the  merit  system 
in  exempting  from  the  civil  service  rules  all  employees  in  the 
marshal's  offices,  from  messengers  up  to  deputy  marshals.    In 
the  control  of  the  district  attorneys  the  Attorney-General  may 
direct  that  a  particular  suit  be  pressed,  dismissed,  or  postponed. 
From  his  directions  there  is  no   official  appeal.     Unofficially, 
appeals  have  been  made  to  the  president  or  to  public  opinion 
with  such  effect  that  the  orders  have  been  reversed. 

The  United  States  marshals  have  the  same  powers  in  executing  The  united 
the  laws  of  the  United  States  as  the  sheriffs  have  in  enforcing  marshals 
the  laws  of  the  respective  states.  There  are  eighty-six  marshals 
and  a  number  of  assistants  and  deputies.  It  is  their  duty  to 
attend  the  sessions  of  the  district  courts  and  execute  all  legal 
processes  directed  to  them  under  the  authority  of  the  United 
States.  The  marshals  and  their  assistants  and  deputies  make 
arrests,  carry  out  the  judgment  of  the  court  by  seizing  and  sell- 
ing the  property  under  civil  judgments,  and  under  certain  cir- 
cumstances may  call  upon  the  military  forces  of  the  United  States 
to  aid  them  in  the  exercise  of  their  duties. 

The  Department  of  Justice  also  has  administrative  control  over  The  Depart- 
the  penal  institutions  of  the  United  States.  There  are  two  national  justice  has 
penitentiaries,  one  at  Leavenworth,  Kansas,  and  one  at  Atlanta, 
Georgia ;  there  are  also  a  jail  and  two  reform  .schools  in   the  °g 
District  of  Columbia.     In  these  institutions  convicted  offenders  institutions 
against  the  laws  of  the  United  States  are  confined,  although  the 
national  government  makes  some  use  of  state  penal  institutions. 


254    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  Attorney-  (4)  The  Attorney-General  is  also  the  advi^erojjiiejresident 
Mnstt'itU  in  in  the  exercise  of  his  pardoning  power.  A  special  staff  of 
pardons  subordinates  is  assigned  for  this  purpose.1 

THE  POST-OFFICE  DEPARTMENT2 

organization  The  Post  Office,  an  inheritance  from  pre-Revolutionary  days, 
offlcV  P°8t"  was  at  first  classed  as  a  branch  of  the  Treasury,  but  became 
Department  a  cabinet  office  in_i829.  In  its  organization  it  differs  somewhat 
from  the  other  departments  in  that  its  chief,  the  Postmaster- 
General,  reports  directly  to  Congress  —  in  which  respect  he 
resembles  the  Secretary  of  the  Treasury  —  and  that  the  auditor 
assigned  to  it  certifies  the  balances  due  the  service  directly  to 
the  Postmaster-General  rather  than  to  the  Secretary  of  the 
Treasury  as  do  the  auditors  for  the  other  departments.  There 
are  four  Assistant  Postmasters-General,  each  in  charge  of  an 
office  with  numerous  divisions.  Unlike  the  post-office  depart- 
ment in  England  there  was  until  1917  no  attempt  to  gain  a 
surplus  revenue  from  the  service.  Only  four  times  since  1900 
have  the  receipts  equaled  the  expenses,  the  policy  being  to 
improve,  extend,  and  cheapen  the  service  rather  than  to  obtain  a 
net  income.  From  1917  to  1919,  however,  as  a  part  of  the  war 
finance,  the  postage  rates  were  increased  with  the  intention  of 
producing  surplus  revenue  for  the  Treasury. 

Magnitude  The  Post-Office  Department  is  the  largest  and  the  most  widely 
operations  distributed  of  all  the  departments,  and  in  its  operations  it  comes 
into  touch  with  practically  the  entire  population.  For  the  trans- 
portation of  the  mails  it  maintains  over  twelve  thousand  mail 
routes,  aggregating  over  two  hundred  and  eighty-six  million  miles. 
These  routes  include  the  rural  mail  delivery  routes,  the  city 
routes,  the  steamboat  routes,  and  the  railroad  routes.  In  1917 
there  were  over  fifty-five  thousand  post  offices.  The  Post-Office 
Department  performs  not  merely  the  functions  of  transporting 
the  mail  but  also  collects  and  delivers  it.  In  1904  this  service 

1  See  p.  198. 

2  The  organization  of  the  department  is  as  follows  :  Postmaster-General, 
Chief  Clerk,  Solicitor,  five  Assistant  Attorneys ;  four  Assistant  Postmasters- 
General,  each  of  whom  presides  over  an  office,  in  each  of  which  are  divisions. 
In  the  office  of  the  Third  Assistant  Postmaster-General  is  the  division  of  Postal 
Savings,  over  which  there  is  a  Director. 


EXECUTIVE  DEPARTMENTS  255 

was  extended  by  "the  rural  free  delivery  service"  to  country 
districts,  and  at  present  over  one  half  of  the  population  of  the 
country  are  within  reach  of  free  delivery  of  some  sort. 

Aside  from  the  transportation  of  letters  and  printed  matter,  Parcel  post 
the  facilities  of  the  postal  service  were  in  1913  extended  to 
parcels  of  merchandise.  In  making  this  extension  there  was 
adopted  a  system  which  was  novel  in  the  United  States.  Instead 
of  charging  a  flat  rate  based  upon  weight  for  any  distance 
throughout  the  country,  the  country  was  divided  into  "  zones  " 
and  the  rates  varied  not  merely  with  the  weight  of  the  parcel 
but  also  with  the  distance  it  was  carried.  The  growth  of  this 
branch  of  the  service  has  been  extraordinary,  and  the  revenue 
gained  from  it,  although  at  first  not  sufficient  to  pay  the  cost,  was 
held  sufficient  to  justify  an  increase  of  the  maximum  weight.  As 
part  of  the  War  Revenue  Act  of  1917  parcel  postage  was  taxed 
at  the  rate  of  one  cent  for  every  twenty-five  cents  postage. 

In  1912  a  system  of  postal  savings  banks  was  inaugurated,  Postal 
which  was  further  extended  in  1914.  By  this  system  postmas- 
ters are  authorized  to  open  accounts  for  one  dollar  or  more,  but 
the  depositors  are  limited  to  twenty-five  hundred  dollars  at  any 
one  time,  exclusive  of  interest.  Interest  is  paid  at  the  rate  of 
2  per  cent  per  annum  upon  the  amounts  deposited  for  a  year, 
but  not  fractions  of  a  year.  On  June  30,  1917,  there  were  nearly 
seven  hundred  thousand  depositors  with  one  hundred  and  thirty- 
one  million  dollars  to  their  credit.  The  system  is  now  more 
than  self-supporting,  yielding  a  profit  of  nearly  a  million  dollars 
in  1917. 

The  Post  Office  also  performs  other  services,  such  as  regis-  Registered 
tering  letters,  by  which  the  transportation  and  delivery  are  subject  money  orders; 
to  special  attention  ;  the  money-order  system,  by  which  money  may 
be  deposited  at  one  post  office  and  an  order  obtained  payable  to 
the  person  to  whom  the  order  is  sent ;  the  special-delivery  system, 
by  which  mail  matter  is  delivered  immediately  upon  its  receipt  at 
certain  offices  within  certain  distances.    For  all  these  services 
extra  fees  are  charged  in  addition  to  the  regular  postage  rate. 

The  immense  number  of  employees  in  the  Post-Office  Depart- 
ment and  the  opportunity  to  extend  political  influence  early 
attracted  the  attention  of  the  spoilsmen.  The  Post  Office  and 


256    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Extension  of 
the  classified 
service  in  the 
Post-Office 
Department 


Activities  of 
the  Depart- 
ment of  the 
Navy  confined 
to  naval 
affairs 


Office  of  Naval 
Operations 


Chief  of  Naval 
Operations 


Treasury  have  been  the  two  departments  which  have  been  most 
constantly  used  for  the  purpose  of  gaining  or  extending  political 
influence ;  and  the  reform  of  the  civil  service  was  applied  almost 
simultaneously  to  these  departments.  At  present  the  classified 
service  extends  to  the  railway  mail  service,  rural  delivery,  and  all 
clerks  and  carriers  ;  and  President  Roosevelt  and  President  Taft 
extended  it  to  fourth-class  postmasters,  while  in  191 7  l  President 
Wilson  by  executive  order  prescribed  a  civil-service  examination 
for  all  first-,  second-,  and  third-class  postmasters.  This,  however, 
does  not  alter  the  power  of  the  Senate  to  reject  the  nominees 
so  chosen,  so  that  it  can  hardly  be  said  that  these  classes  are 
completely  removed  from  political  patronage  and  placed  in  the 
classified  service. 

THE  DEPARTMENT  OF  THE  NAVY2 

Unlike  the  War  Department,  the  Department  of  the  Navy  is 
confined  almost  entirely  to  the  administration  of  naval  affairs. 
Its  bureaus  and  divisions  are  concerned  with 'the  duties  which 
are  made  plain  by  the  titles,  and  there  are  no  bureaus  which  are 
engaged  in  work  unconnected  with  the  navy. 

One  office,  however,  should  be  examined  —  the  Office  of  Naval 
Operations.  This  consists  of  the  Chief  of  Naval  Operations, 
Assistant  for  Operations,  Aid  to  the  Admiral,  Assistant  for 
Materiel,  and  Chief  Clerk.  By  the  act  of  1915  the  Chief  of 
Naval  Operations  ranks  next  to  the  Secretary  and  Assistant 
Secretary  and  in  their  temporary  absence  acts  as  head  of  the 
department.  The  chief  is  charged  with  the  operat*wi^of  the 

in  wan  This  Includes  the  direction  of  the  NavaTWar  College, 
the  Office  of  Naval  Intelligence,  and  the  offices  concerned  with 
more  technical  questions.  The  Chief  of  Operations  prepares 

1  March  31. 

2  The  organization  of  the  Department  of  the  Navy  is  as  follows :   Secretary 
Assistant  Secretary,  Chief  Clerk,  the  Office  of  Naval  Operations,  the  Office  of 
Judge  Advocate,  the  Office  of  the  Solicitor,  and  seven  bureaus  -  Navigation, 

i  and  Docks,  Ordnance,  Construction  and  Repair,  Steam   Engineering, 

Supplies  and  Accounts,  Medicine  and  Surgery.    There  are  also  various  boards 

duties  are  assigned,  and  directors  of  the  hospital  and  dispensary.    In 

lion,  there  ,s  the  Marine  Corps  under  its  Commandant,  a  Major  General 

who  is  respons.ble  to  the  Secretary  for  the  efficiency  of  the  corps. 


EXECUTIVE  DEPARTMENTS  257 

the  regulations  for  the  government  of  the  navy,  the  Naval  In- 
structions, and  the  General  Orders.  He  advises  the  Secretary 
concerning  the  movements  of  ships,  and  in  regard  to  the  military 
features  of  all  new  ships  and  alterations  of  old  ones.  He  freely 
consults  with  and  has  the  advice  of  the  various  bureaus,  boards, 
and  offices  of  the  department. 

The  Marine  Corps  was  organized  in  177 5 'and  reorganized  in  The  Marine 
1794.     It  was  a  body  of  troops  of  the  authorized  strengtfy  of  Corps 
thirty  thousand  who  served  upon  ships  or  garrison  fortifications. 
It  is  under  the  direction  and  command  of  the  Commandant  of 
the  Marine  Corps,  who  is  responsible  to  the  Secretary  of  the 
Navy.     Because   of  serving  on   naval   vessels    detachments   of 
the  Marine  Corps  are  frequently  the  first  to  be  sent  to  any  scene 
of  trouble.   Thus  the  Corps  has  served  in  all  parts  of  the  world  and 
everywhere  showed  its  efficiency  and  worth.    During  the  World 
War  it  was  recruited  to  a  strength  of  nearly  eighty  thousand. 

THE  DEPARTMENT  OF  THE  INTERIOR1 

The  Department-pJLthe  Interior  was^organized_mi84Q  by  the  The  Depart- 
transference  and  consolidation  of  various  bureaus  ^Trorri  other 
departments.  It  is  charged  with  a  great  many  miscellaneous 
duties  not  usually  found  in  such  departments  abroad,  while  it  functions 
has  few  or  none  of  the  duties  usually  assigned  to  departments 
of  similar  names.  From  the  Department  of  State  was  taken  the 
Patent  Office ;  from  the  Treasury,  the  Land  Office ;  from  the 
War  Department,  the  Indian  Bureau  and  the  Pension.  Office ; 
and  minor  duties  were  transferred  from  other  departments.  The 
organization  is  that  of  a  typical  department,  except  that  the  chief 
officers  are  usually  entitled  Commissioners. 

The  Constitution  allows  Congress  to  make  laws  "to  promote  The  patent 
the  progress  of  science  and  useful  arts,  by  securing  for  limited 
times,  to  authors  and  inventors,  the  exclusive  right  to  their  respec- 
tive writings  and  discoveries."  2  Acting  upon  this,  the  first  patent 

1  The  Department  of  the  Interior  is  organized  as  follows :    Secretary,  two 
Assistant  Secretaries,  Chief  Clerk,  the  Land,  Indian,  and  Patent  Offices ;    and 
the  following  bureaus  —  Pension,  Education,  Mines  ;  the  Geological  Survey,  the  • 
Reclamation  Service,  and  the  National  Park  Service. 

2  The  Constitution  of  the  United  States,  Article  I,  Sect,  viii,  clause  8. 


258    THE  GOVERNMENT  OF  THE  UNITED  STATES 

law  was  passed  in  1790,  and  the  issuing  of  patents  was  intrusted 
to  a  board  consisting  of  the  Secretary  of  State,  the  Secretary  of 
War,  and  the  Attorney-General.    In  1836  radical  changes  were 
made,  and  the  system  in  use  at  present  was  initiated,  with  a 
bureau  called  the  Patent  Office  in  charge  of  the  Commissioner 
of  Patents.    Patents  are  issued  upon  application  of  the  inventors 
after  examination  by  a  corps  of  expert  examiners,  who  pass  upon 
the  novelty  of  the  invention  and  the  possibility  of  infringement 
upon  other  patents.    Designs  may  also  be  patented  and  trade- 
marks registered.    The  judgment  of  the  Commissioner  is  final, 
appeal  lying  to  the  Supreme  Court  of  the  District  of  Columbia 
and  thence  to  the  United  States  Supreme  Court.     Much  com- 
plaint has  arisen  over  the  expensiveness  and  delay  of   patent 
litigation,  and  in  1912  the  Supreme  Court  revised  the  rules  of 
equity  procedure  under  which  patent  suits  are  prosecuted.    In 
recent  years  popular  opinion  has  been  aroused  against  the  sys- 
tem whereby  the  holders  of  patents  attempted  to  fix  the  price 
of  the  articles  and  to  surround  its  use  with  conditions.    This  has 
been  partially  remedied  by  the  Clayton  Law  of  19 14.!  The  total 
number  of  patents  issued  up  to  1917  was  over  a  million. 
The  Land       \  One  of  jhe  most  important^bureaus  ofjhe  departmentisj-hp 
LandJ2fi}ce.    Most  of  the  territory  of  the  United  States,  outside 
of  the  original  thirteen  states  and  insular  possessions,  has  been  at 
one  time  or  another  public  land,  held  and  controlled  by  the  gov- 
ernment.   On  the  continent  of  America  there  has  been  over  two 
million  nine  hundred  and  twenty-five  thousand  square  miles  of 
public  land  out  of  a  total  of  over  three  million  five  hundred  thou- 
sand square  miles.   This  domain  has  been  disposed  of  in  many 
ways :    grants  to  soldiers  and  sailors,  sales  to  land  companies, 
sales  to  settlers,  homestead  grants,  grants  to  states,  grants  to  states 
for  the  purpose  of  education  or  making  internal  improvements, 
grants  directly  to  railroads,  and  other   corporations   to   aid   in 
improvements,  and  reservations  for  Indians.     In  the  fifty  years 
following  the  Civil  War  the  disposal  of  the  public  land  was  very 
rapid,  the  government  granting  or  selling  over  three  hundred 
and  twenty-four  million  acres.    At  present  the  public  domain 
consists  of  about  two  hundred  and  thirty  million  acres  scattered 

1  See  pp.  517-519. 


EXECUTIVE  DEPARTMENTS  259 

through  twenty-five  states,   but  not  including  the  vast  public 

domain  of  Alaska.    The  disposal  of  this  vast  amount  of  land  has 

not  been  unattended  with  fraud.     The  classification  of  land,  as  classification 

mineral,   timber,   agricultural,   or  grazing,    has  been  only  very  of  publlc  land 

imperfectly  carried  out ;    and   many  fictitious  entries  of  small 

homesteads  have  been  combined  to  create  enormous  holdings 

for  purposes  not  sanctioned  by  law,  while  the  waste  with  regard 

to  forest  land  has  been  extravagant.    In.  recent  years  the  survey 

and  classification  have  been  performed  with  greater  care.   During 

1917  the  total  classified  land  amounted  to  more  than  eighteen 

million  acres. 

The  Land  Office  has  been  and  still  is  charged  with  the  survey 
and  classification  of  the  public  land  and  with  its  disposal.  Out- 
side of  Washington  it  maintains  about  a  hundred  land  offices, 
where  claims  for  public  land  may  be  entered  and  proved,  and 
patents  issued.  The  policy  of  the  government  in  the  disposal 
of  its  public  land  has  not  been  a  financial  success,  the  system 
having  cost  more  than  the  returns  have  produced,  but  the  rapid 
expansion  of  the  West  and  the  settlement  of  the  country  have 
resulted  in  adding  so  much  wealth  to  our  resources  that  the 
policy  may  have  been  justified.  At  present  the  conservation  of  conservation 
the  remaining  public  land  is  very  much  before  Congress.  By 
this  is  meant  the  careful  survey  and  classification  of  the  land  1 
and  the  enforcement  of  laws  concerning  the  acquisition  of  mineral  products 
lands  and  land  controlling  water-power  sites,  so  that  the  govern- 
ment may  supervise  to  some  degree  the  sale  of  their  products. 
This  policy  is  very  popular  in  the  East  and  in  those  states  where 
there  is  no  public  land,  but  is  opposed  by  those  states  in  which 
the  government  still  holds  large  amounts  of  land.  To  such  states 
it  seems  that  the  government  should  continue  the  policy  of  open- 
ing up  the  land  as  rapidly  as  possible,  thereby  increasing  settle- 
ment and  the  taxable  wealth  of  the  states  instead  of  holding  the 
land  and  thus  withdrawing  from  state  taxation  a  large  proportion 
of  its  resources. 

Closely  connected  with  the  Land  Office  in  purpose,  although  The  Recia- 
not  in  administration,  is  the  Reclamation  Service.    This  service  service 
is  charged  with  the  survey  and  construction  of  irrigation  works 
in  arid  or  semiarid  regions.    The  work  was  begun  in  1902  on 


Indian  Office 


The  Pension 
Office 


260    THE  GOVERNMENT  OF  THE  UNITED  STATES 

n 

a  large  scale,  and  up  to  1917  nearly  one  hundred  million  dollars 
had  been  invested  in  such  projects.  By  the  Newlands  Reclama- 
tion Act,  under  which  the  service  was  first  inaugurated,  the  lands 
so  reclaimed  were  sold  to  settlers,  who  paid  for  them  in  annual 
installments,  thus  restoring  to  the  fund  the  money  which  was 
expended  for  the  construction  of  the  project.  In  addition,  land 
already  privately  owned  may  receive  the  benefit  of  the  service  on 
the  payment  of  a  fee.  The  construction  of  reservoirs  with  dams 
makes  it  possible,  by  the  water  power  thus  generated,  to  produce 
electric  power,  which  is  also  sold.  In  1913  there  were  twelve 
such  power  plants  capable  of  producing  over  thirty  thousand 
horse  power.  The  total  number  of  acres  the  service  could  supply 
in  1918  was  one  million  five  hundred  thousand,  of  which  over 
a  million  acres  were  actually  irrigated. 

Indian  affairs  are  managed  by  a  commissioner  presiding  over 
a  bureau,  together  with  a  large  number  of  agents  and  employees. 
The  duty  of  the  Indian  Office  involves  not  merely  the  control 
of  the  Indians  upon  the  government  reservations  and  their  edu- 
cation, both  there  and  at  schools  specially  maintained  for  them, 
but  the  administration  of  the  great  wealth  represented  in  their 
lands.  Some  of  these  lands  are  held  by  tribes  and  are  still  uti- 
lized for  hunting,  grazing,  or  rudimentary  agriculture ;  others  have 
been  allotted  to  individuals  with  restrictions  upon  their  sale  ;  still 
others  have  been  sold  outright  and  the  funds  administered  for 
the  benefit  of  the  tribe. 

The  Pension  Office  is  under  the  direction  of  the  Commis- 
sioner of  Pensions,  assisted  by  a  deputy  commissioner  and  a 
large  body  of  clerks,  agents,  and  minor  employees.  This  bureau 
examines  the  claims,  preserves  the  records,  and  makes  payment 
in  accordance  with  the  general  law  and  the  special  statutes.  In 
the  matter  of  pensions  the  United  States  has  been  most  generous, 
if  not  profligate.  Until  the  Civil  War  the  annual  payments  sel- 
dom exceeded  two  million  dollars  a  year.  In  1862  an  invalid 
pension  law  and  the  effects  of  the  Civil  War  increased  the 
annual  payments  to  over  twenty  million  dollars  a  year.  The  law  of 
l%79>  providing  for  back  payments  to  new  pensioners,  increased 
the  appropriations  to  eighty-eight  million  dollars  in  1889  ;  and  the 
dependent  pension  bill  of  1890,  together  with  thousands  of  special 


EXECUTIVE  DEPARTMENTS  261 

bills,  still  further  increased  the  amount,  while  the  service  pension 
bill  of  1912  made  the  payment  of  1913  over  one  hundred  and 
seventy-four  million  dollars.  Altogether  the  bureau  has  disbursed 
since  1866  nearly  five  billion  dollars.  In  1916  there  were  upon 
the  rolls  four  hundred  thousand  persons  who  had  rendered  serv- 
ice in  army  or  navy,  regular  or  volunteer,  while  the  remainder 
of  the  names,  three  hundred  thousand,  were  those  of  widows  or 
dependents.  The  general  laws,  generous  enough  in  themselves, 
are  annually  supplemented  by  thousands  of  special  bills  whose 
claims  have  been  rejected  by  the  bureau. 

The  Commissioner  of  Education  collects  statistics  and  general  The  commis- 
information   concerning  the   condition   of  education,  issues  an  Education 
annual  report  and  numerous  bulletins,  has  charge  of  the  educa- 
tion of  the  native  children  in  Alaska,  supervises  the  reindeer 
industry,  and  administers  certain  funds  for  the  support  of  colleges 
for  the  benefit  of  agriculture  and  mechanic  arts. 

The  Bureau  of  Mines  is  charged  with  the  investigations  of  The  Bureau 
the  methods  of  mining,  especially  in  relation  to  the  safety  of  the  ° 
miners.    The  bureau  also  investigates  the  treatment  of  ores  and 
other  mineral  substances  and  the  use  of  explosives  and  electricity. 
The   Director   of   the  bureau    has    supervision   over   the    mine 
inspector  in  Alaska  and  the  administration  of  the  act  of  1917, 
which  prohibits  the  manufacture,  distribution,  storage,  use,  and     . 
possession  in  time  of  war  of  explosives  and  provides  regulations 
for  the  same. 

THE  DEPARTMENT  OF  AGRICULTURE  1 

The  Department  of  Agriculture  has  its  origin  in  the  distribu-  origin  of  the 
tion  of  seeds  begun  in  i8j6^by  H.  L.  Ellsworth,  Commissioner 
of  Patents.    This  work,  together  with  the  publication  of  agricul- 
tural statistics,  was  continued  by  successive  commissioners  until 

1  The  Department  of  Agriculture  is  organized  as  follows  :  Secretary ;  two 
Assistant  Secretaries  ;  Chief  Clerk;  Solicitor  who  has  important  duties  in  enforc- 
ing the  Pure  Food  and  Drugs  laws;  nine  bureaus  —  Weather,  Animal  Industry, 
Plant  Industry,  Chemistry,  Soils,  Entomology,  Biological  Survey,  Crop  Esti- 
mates, Markets ;  the  Office  of  Farm  Management ;  the  Forest  Service  ;  States 
Relations  Service ;  Office  of  Public  Roads  and  Rural  Engineering,  Insecticide 
and  Fungicide  Board,  Federal  Horticultural  Board;  two  divisions  —  Accounts 
and  Disbursements,  and  Publications. 


The  Weather 
Bureau 


The  Bureau 
of  Animal 
Industry 


The  Bureau 
of  Plant 
Industry 


The  Bureau 
of  Chemistry 


The  Food 
and  Drugs 
Act 


262    THE  GOVERNMENT  OF  THE  UNITED  STATES 

1862  when  an  independent  bureaujrf  agriculture  was  established, 
ali^tronTlhat  date  its  funcHons^expanded  so  rapiHIy'TKaf^in 
1888  it  was  made  an  executive  department  with  cabinet  rank. 
The  department  is  one  of  the  most  highly  organized  of  all  the 
executive  departments  and  performs  varied  services. 

The  Weather  Bureau  has  charge  of  weather  forecasts,  includ- 
ing the  display  of  warnings  of  storms,  cold  waves,  frosts,  and 
floods,  for  the  benefit  of  agriculture  and  navigation.  It  also 
gathers  statistics  which  it  receives  from  over  three  thousand 
localities,  makes  meteorological  observations,  and  reports  the 
temperature  and  rainfall  conditions  for  agricultural  districts.  Its 
forecasts  of  climatic  conditions  are  distributed  to  over  two 
hundred  thousand  places. 

The  Bureau  of  Animal  Industry  has  charge  of  the  supervision 
of  dangerous  communicable  diseases  of  live  stock  and  the  inspec- 
tion of  animals  and  products  of  animals  in  transit.  It  acts  in  con- 
nection with  the  Solicitor  regarding  meat  inspection  and  the 
establishment  of  quarantines.  In  addition,  it  has  charge  of  dairy 
products  for  foreign  exportation  and  inspects  the  manufacture 
of  renovated  butter. 

The  Bureau  of  Plant  Industry  carries  on  scientific  investiga- 
tions of  plant  life,  with  the  view  of  preventing  diseases  and  in- 
creasing the  fertility  of  the  soil,  and  recommends  the  introduction 
of  new  species.  This  bureau  also  continues  to  direct  the  seed 
distribution,  sending  out  about  forty  million  packages  of  assorted 
seeds  each  year  upon  the  orders  of  members  of  Congress.  The 
bureau  has  divisions  for  farm  management,  western  agricultural 
work,  farmers'  demonstrations,  and  dry-land  agriculture. 

The  Bureau  of  Chemistry  is  one  of  the  most  far-reaching  and 
important  of  all  the  bureaus.  It  is  divided  into  three  great  divi- 
sions—  Foods,  Drugs,  and  Miscellaneous  —  and  has  charge  of  the 
enforcement  of  the  Food  and  Drugs  Act  of  i§t>6.  Although  the 
federal  government  since  1890  has  inspected  cattle  for  export 
and  established  quarantines  in  case  of  contagious  diseases  of  live 
stock,  the  great  activity  in  this  line  began  in  1906  as  a  result 
of  the  revelations  of  the  conditions  in  the  packing-  and  slaughter- 
houses. The  interest  was  not  confined  merely  to  live  stock  but 
was  extended  to  foods  of  all  sorts  and  to  drugs.  The  laws  require 


EXECUTIVE  DEPARTMENTS  263 

the  federal  inspection  of  all  live  stock  slaughtered  for  use  in  inspection 
foods,   which   is  to  be   shipped   outside   the   state   boundaries.  ° 
Such  meat  and  manufactured  products  bear  the  federal  inspection 
stamp  guaranteeing  that  they  have  been  prepared  under  proper 
hygienic  conditions  and  that  the  articles  correspond  with  the 
brand  upon  the  package.    Two  objects  are  thus  accomplished —  correct 
the  product  has  been  inspected  with  regard  to  its  purity,  and  branding 
frauds  of  misbranding  are  prevented.    Another  law  extends  the 
same  principles  to  drugs  or  proprietary  compounds.    This  pro-  Drugs 
vides  for  the  analysis  of  the  drug  or  compound  and  a  truthful 
labeling  of  its  contents.     It  furthermore  requires  that  the  pres- 
ence of  alcohol,  opiates,  and  preservatives   shall  be   indicated 
upon  the  label.   Although  much  of  this  work  is  under  the  charge 
of  the  Bureau  of  Chemistry,  the  Bureaus  of  Animal  Industry 
and  Plant  Industry  are  also  interested.     Attempts  are  made  to 
secure  standards  for  live  stock  and  seeds,  and  in  connection 
with  the  latter  to  prevent  adulteration. 

The  sanction  for  this  legislation  is  found  in  the  interstate  sanction  for 
commerce  clause  of  the  Constitution,  and  the  foregoing  regula-  i 
tions  need  only  be  complied  with  in  case  the  article  is  to  be 
shipped  outside  of  the  state  where  manufactured ;  but  as  practi- 
cally all  trade  crosses  at  least  one  state  line  the  federal  laws  are 
almost  universally  enforced.  The  enforcement  of  the  law  has  Enforcement 
brought  about  a  great  extension  of  activity  on  the  part  of  the 
central  government  and  an  invasion  of  a  field  formerly  exclu- 
sively occupied  by  the  states.  The  enforcement  xhas  also  involved 
the  department  in  many  controversies ;  for  example,  the  deter- 
mination of  the  once  vexed  question,  "  What  is  whisky  ? "  and 
the  determination  of  whether  preservatives  were  harmful  or  not. 
The  bureau  has  many  scientific  and  technical  laboratories  inves- 
tigating these  questions,  and  their  determinations  are  subject  to 
the  review  of  the  Referee  Board  of  Consulting  Scientific  Experts ; 
and  then  the  enforcement  of  them  is  in  the  hands  of  a  solicitor 
detailed  from  the  Department  of  Justice. 

The  Bureau  of  Entomology  makes  investigations  with  regard  Bureau  of 
to  injurious  insects  affecting  crops,  fruits,  or  forests,  and  their 
relation  to  the  diseases  of  man.    The   Bureau   of  Soils  issues  Bureau  of 
maps  showing  the  nature  of  the  soil  in  all  portions  of  the  country 


Bureau  of 
Crop  Esti- 
mates 


Bureau  of 
Biological 
Survey 


Office  of  Farm 
Management 


State  Rela- 
tions Service 


Office  of  Pub- 
lic Roads  and 
Rural  Engi- 
neering 

Bureau  of 
Markets 


Forest 
Service 


Aims  of 

conservation 

movement 


Classification 
of  land 


264    THE  GOVERNMENT  OF  THE  UNITED  STATES 

and  makes  suggestions  for  methods  of  improvement.  The  Bureau 
of  Crop  Estimates  reports,  gathers,  and  publishes  statistics  con- 
cerning agriculture.  It  acts  in  cooperation  with  nearly  fifty  thou- 
sand agents.  The  Bureau  of  Biological  Survey  investigates  the 
economic  relations  of  birds  and  mammals,  has  charge  of  the 
enforcement  of  the  game  laws  in  the  federal  reservations,  and 
administers  the  federal  migratory  bird  law.  The  Office  of  Farm 
Management  studies  the  details  of  farm  practice  with  the  inten- 
tion of  introducing  better  business  methods.  The  State  Relations 
Service  represents  the  Secretary  of  Agriculture  in  his  relations  with 
state  agricultural  colleges  and  experiment  stations,  under  an  act 
granting  funds  to  these  institutions  for  certain  work  in  the  way  of 
experiment  stations,  and  cooperative  extension  work.  The  Office 
of  Public  Roads  and  Rural  Engineering  administers  the  federal- 
aid  road  act,  which  grants  to  states  aid  in  building  post  roads  in 
accordance  with  federal  supervision.  The  Bureau  of  Markets  dis- 
seminates information  concerning  the  marketing  of  products.  In 
its  service  the  bureau  issues  daily  reports,  giving  information  regard- 
ing the  supply,  commercial  movement,  disposition,  and  prices  of 
fruits,  vegetables,  live  stock,  meats,  and  dairy  and  poultry  products. 
The  Forest  Service>  established  in  1877,  has  recently  been 
brought  before  the  public  attention  through  the  enthusiastic 
activities  of  President  Roosevelt  and  Giffojr1  ^in^n^  former 
Forester  of  the  United  btates.  nTTlervice  is  performing  a 
portion  of  the  general  conservation  program,  portions  of  which 
are  given  to  the  Land  Office  and  the  Reclamation  Service. 
The  importance  of  forestry  work  was  brought  graphically  to  the 
attention  of  Congress  by  one  of  President  Roosevelt's  messages. 
The  aims  are  twofold :  first,  to  prevent  the  extravagant  and 
wasteful  use  of  timber,  to  guard  against  the  danger  of  fire,  to 
reforest  those  regions  already  denuded ;  second,  to  preserve 
the  forests  as  a  means  of  preventing  floods  which  almost  invari- 
ably follow  deforestation.  Many  questions  and  policies  apparently 
unconnected  with  forestry  have  risen  in  the  enforcement  of  the 

regulations.    For  example,  the  classification  of  land should  it 

be  foj^sL-^5^turaj,ormineral  ?  It  is  obvious  that  mineral  land 
and  agricultural  lanH^aTe'of  more  immediate  value  than  that 
reserved  for  forests,  and  the  pressure  is  constant  that  the  land 


EXECUTIVE  DEPARTMENTS  265 

withdrawn  for  forests  should  be  opened  for   other   purposes. 

Since  the  sources  of  many  streams  are  in  the  national  forests,  control  of 

the  question  arises  whether  the  national  government  should  con-  water  power 

trol  or  have  supervision  over  the  sites  suitable  for  water-power 

developments.     If  the  land  is  withdrawn  from  the  forest  and 

granted  to  private   individuals   or  companies,  the  government 

naturally  loses  the  power  to  regulate  and  control  the  use  of  the 

water  power  and  its  product  —  electricity;    The  aim  has  been  to 

grant  limited  franchises,  giving  the   government  certain  rights 

of  control,  with  the  power  to  revoke  the   grant  under  certain 

conditions.     The  use  of  the  national  forests  is  also  one  which 

involves  considerable  friction.    The  enforcement  of  governmental 

regulations  with  regard  to  cutting  timber  and  use  of  the  forests 

for  grazing  frequently  brings  the  forest  agents  into  conflict  with 

local  public  opinion.     This  service  is  primarily  concerned  only 

with  forests  upon  the  public  domain,  but  it  cooperates  with  states 

in  the  attempt  to  extend  its  purposes. 

At  present  there  are  one  hundred  and  fifty  national  forests  The  national 
in  the  United  States  besides  the  Appalachian  forest  reserve  in 
process  of  creation  in  the  East.  In  1909  these  reservations  con- 
tained nearly  two  hundred  million  acres,  but  with  a  redefinition  of 
the  boundaries  and  the  reclassification  of  the  lands  they  amount 
now  to  about  one  hundred  and  fifty-five  million  acres.  The  work  of 
the  government  is  to  protect  them  against  fire,  encroachment,  theft 
of  timber,  and  also  to  supervise  scientific  lumbering  so  that  a  steady 
revenue  may  be  derived  without  exhausting  the  resources  of  the 
forest.  For  the  year  ending  June  30,  1918,  the  forest  receipts 
were  over  three  million  five  hundred  thousand  dollars. 

THE  DEPARTMENT  OF  COMMERCE  l 

The  Department  of  Commerce  and  Labor  was_created  j"_£go 3 , 
and  from  it  three~Bureaus  were  taken  irTTcfiY  to  form  a  Depart- 
ment of  Labor.  The  Department  of  Commerce  still  retains  the 
management  of  the  following  important  work : 

1  The  Department  of  Commerce  is  organized  as  follows  :  Secretary,  Assistant 
Secretary,  Chief  Clerk  ;  three  divisions — Appointments,  Publications,  Supplies  ; 
six  bureaus —  the  Census,  Foreign  and  Domestic  Commerce,  Standards,  Light- 
houses, Fisheries,  Navigation;  the  Coast  and  Geodetic  Survey;  Steamboat 
Inspection  Service. 


266    THE  GOVERNMENT  OF  THE  UNITED  STATES 

[The  Bureau  of  In  the  last  quarter  of  the  nineteenth  century  a  general  con- 
corporations]  sedation  Of  industrial  corporations  took  place.  By  one  means 
or  another  the  principal  industries  of  the  country  were  combined 
into  what  was  popularly  known  as  "  trusts,"  or  by  the  creation 
of  large  corporations.  In  1890,  in  an  attempt  to  check  or  con- 
trol this  process,  the  Sherman  Anti-Trust  Law  was  passed,  by 
the  provisions  of  which  it  was  declared  that  every  contract,  com- 
bination in  the  form  of  a  trust  or  otherwise,  or  conspiracy  in 
restraint  of  trade  or  commerce  among  the  several  states  and 
with  foreign  nations  was  illegal.  The  act  also  provided  penalties 
for  the  violation  of  its  provisions.  Although  this  act  was  on  the 
statute  book  for  over  ten  years,  little  was  done  toward  enforcing 
it.  In  1903,  upon  the  recpmmendation  of  President  Roosevelt, 
a  Bureau  of  Corporations  was  established  for  the  purpose  of 
gathering  information  concerning  the  organization  and  operation 
of  business  corporations  engaged  in  interstate  trade,  other  than 
those  which  were  under  the  jurisdiction  of  the  Interstate  Com- 
merce Commission.  The  information  so  gathered  was  made  pub- 
lic, and  this  policy  of  "  efficient-Pijblicity  "  was  so  effective  that 
many  of  the  practices  complained  of  were  remedied.  In  1914 
the  Bureau  of  Corporations  was  abolished  and  its  functions  were 
transferred  to  the  Federal  Trade  Commission. 

The  Bureau         The  Bureau  of  Foreign  and  Domestic  Commerce  publishes 
and  Domestic  daily  information  obtained  by  consular  reports  and  other  sources 
concerning  home  and  foreign  markets.    Its  duty  is  to  aid  and 
foster  trade  in  every  way  possible. 

The  Bureau         The  Bureau  of  Lighthouses  has  under   its  jurisdiction  the 
houses""        establishment  and  maintenance  of  lighthouses,  lightships,  buoys, 
and  other  aids  to  navigation. 

ofhtne  census  ^e  Bureau  °^  the  Census  is  charged  with  taking  the  decen- 
nial census  required  by  the  Constitution.  From  the  first  these 
censuses  have  been  more  than  mere  enumerations  of  the  popu- 
lation, and-  have  sought  to  gather  useful  and  significant  statistics. 
The  last  census  of  1910  made  inquiries  upon  the  population 
schedules  concerning  literacy,  employment,  and  so  forth ;  while 
information  concerning  agriculture,  manufactures,  and  mining 
was  given,  and  an  investigation  of  local  finances  was  made.  The 
results  of  these  investigations  are  published  in  a  series  of 


EXECUTIVE  DEPARTMENTS  267 

volumes  and  give  a  valuable  statistical  picture  of  the  population, 
resources,  and  activities  of  the  country.  Although  the  census 
is  taken  once  every  ten  years,  the  census  office  is  in  constant 
operation,  obtaining,  tabulating,  and  publishing  the  information 
it  has  obtained. 

The  Bureau  of  Navigation  has  oversight  of  the   merchant  The  Bureau 
marine  and  seamen.    It  issues  registers  and  licenses,  and  through  ofNavi£atlon 
the  customs  officers  enforces  navigation  and  steamboat  laws. 

The  Steamboat  Inspection  Service  had  its  origin  in  1838  as  The  steam- 
trie  result  of  a  number  of  appalling  boiler  explosions.   At  present  Son  service 
there  is  one  inspector,  ten  traveling  supervising  inspectors,  with 
local  inspectors  at  every  important  port.    Inspections  are  made 
not  merely  of  the  boiler  but  of  the  hulls  of  both  steam  and  sail- 
ing vessels.     In  addition,  this  service  enforces  the  provisions 
requiring  adequate  life  preservers  and  lifeboats. 

The  Geodetic  Survey  makes  accurate  surveys  of  the  coasts  of  The  Geodetic 
the  United  States  and  its  dependencies,  publishes  charts,  tide  Survey 
tables,  coast  pilots,  and  information  helpful  to  mariners. 

The  Bureau  of  Fisheries  is  charged  with  the  investigation  of  The  Bureau 
the  causes  of  decrease  in  fish,  the  propagation  of  useful  food  ° 
fishes,  the  administration  of  the  salmon  fisheries  of  Alaska,  and 
the  fur-seal  herd  of  the  Pribilof   Islands,  and  the  fur-bearing 
animals  of  Alaska. 

The  Bureau  of  Standards  has  the  custody  of  the  standards  The  Bureau 
used  in  commerce,  scientific  and  educational  institutions,  and  in  ° 
manufacturing.    It  tests  standards  and  compares  them  with  the 
official  ones  in  its  custody. 

THE  DEPARTMENT  OF  LABOR  l 

The  Department  of  Labor  was  created  in  1913  by  the  trans- 
fer of  certain  bureaus  from  the  Department  of  Labor  and 
Commerce. 

The  Bureau  of  Immigration  has  charge  of  the  enforcement  The  Bureau 
of  the  immigration  laws  of  the  United  States.  This  duty  is  Ji0nmmigra" 
under  a  Commissioner-General  of  Immigration,  who  is  assisted 

1  The  Department  of  Labor  is  organized  as  follows :  Secretary,  Assistant 
Secretary,  Chief  Clerk,  Solicitor;  four  bureaus  —  Immigration,  Naturalization, 
Labor  Statistics,  Children ;  and  the  United  States  Employment  Service. 


The  Bureau 
of  Naturali- 
zation 


268    THE  GOVERNMENT  OF  THE  UNITED  STATES 

by  commissioners  at  the  principal  ports  and  a  large  number  of 
agents  and  subordinate  officials.  These  officials  are  intrusted 
both  with  the  physical  examination  of  the  immigrant  and  the 
determination  of  whether  he  falls  within  one  of  the  excluded 
classes.  As  has  been  seen,  their  decision  is  subject  to  a  series  of 
appeals  to  higher  officials  ending,  however,  with  the  Secretary 
of  Labor,  from  whose  decision  there  is  no  appeal  nor  is  there 
a  judicial  review.  The  service  is  in  part  supported  by  a  tax 
levied  upon  entering  immigrants. 

The  Bureau  of  Naturalization  is  charged  with  oversight  of 
the  enforcement  of  the  naturalization  laws.  It  supervises  the 
work  of  the  courts  in  naturalization  matters,  stimulates  the  prepa- 
ration of  candidates  for  naturalization,  and  is  the  repository  for 
the  applications,  preliminary  papers,  and  the  duplicates  of  the 
naturalization  certificates. 

The  Bureau  of  Labor  Statistics  is  charged  with  the  gathering 
of  statistics  relating  to  labor,  the  investigation  of  the  causes  of 
and  the  facts  relating  to  controversies  and  disputes  between 
employers  and  employees,  and  the  publication  of  bulletins  show- 
ing the  condition  of  labor  in  this  country  and  in  others. 

The  Children's  Bureau  investigates  and  reports  upon  all  mat- 
lu  ters  pertaining  to  the  welfare  of  children  and  child  life  among, 
all  classes. 

DETACHED  MISCELLANEOUS  BUREAUS 

The  most  important  and  active  of  these  detached  bureaus  ai 
the  Interstate  Commerce  Commission,  the  Federal  Trade  Com- 
mission, the  Federal  Reserve  Board,  and  the  Civil  Servk 
Commission,  but  the  composition,  organization,  and  work  oi 
these  are  discussed  at  length  elsewhere. 

The  Public  Printer  has  charge  of  and  manages  the  Govern- 
ment Printing  Office.  Here  are  printed  all  the  vast  number  oi 
documents,  reports,  and  papers  that  are  considered  necessai 
for  the  government.  The  joint  Committee  on  Printing,  com- 
posed of  three  senators  and  three  representatives,  exercises  som< 
control  over  the  printing  of  reports,  and  has  charge  of  th< 
printing  of  the  Congressional-  Record,  which  is  issued  dail} 
during  the  sessions  of  Congress. 


The  Bureau 
of  Labor 

Statistics 


The  Chil- 


The  Public 
Printer 


EXECUTIVE  DEPARTMENTS  269 

The  Smithsonian  Institution  was  created  to  receive  the  be-  The  smith- 
quest  of  James  Smithson,  an  Englishman,  who,  in  1826,  left  tutionlr 
his  fortune  for  the  foundation  of  an  institution  for  the  "  increase 
and  diffusion  of  knowledge  among  men."  It  is  governed  by  a 
Board  of  Regents  consisting  of  the  Vice  President,  the  Chief 
Justice,  three  members  of  the  United  States  Senate,  three 
members  of  the  House  of  Representatives,  and  six  citizens  of 
the  United  States  appointed  by  a  joint  resolution  of  Congress. 
The  secretary  is  the  executive  officer  and  the  director  of  the 
activities  of  the  institution.  The  institution  in  cooperation  with 
the  Library  of  Congress  maintains  a  library.  There  are  the  fol- 
lowing government  bureaus  under  the  direction  of  the  Smith- 
sonian Institution  :  the  National  Museum,  Bureau  of  American 
Ethnology,  National  Zoological  Park,  International  Exchanges, 
Astrophysical.  Observatory,  Regional  Bureau  for  the  United 
States,  International  Catalogue  of  Scientific  Literature. 

The  Pan-American  Union  is  the  official  organization  of  the  Thepan- 
twenty-one  republics  of  the  Western  Hemisphere,  founded  and  union^ 
maintained  by  them  for  the  purpose  of  exchanging  useful  in- 
formation and  fostering  commerce,  intercourse,  friendship,  and 
peace.  It  is  supported  by  the  joiiit  contributions  of  the  republics 
which  are  members.  It  is  governed  by  the  diplomatic  represent- 
atives of  the  various  states  at  Washington  with  the  Secretary  of 
State  as  chairman  ex  officio.  It  publishes  monthly  bulletins, 
handbooks,  and  descriptive  pamphlets,  commercial  statements, 
and  every  variety  of  information  helpful  in  the  promotion  of 
Pan-American  interests.  It  also  sets  the  date,  selects  the 
place  of  meeting,  and  prepares  the  programs  for  the  regular 
Pan-American  conferences. 

The  United  States  Bureau  of  Efficiency  is  to  establish  and  The  united 
maintain  efficiency  rating  for  the  executive  departments  in  the  Bureau  of 
District  of  Columbia.  Efficiency 

The  United  States  Shipping  Board  was  established  as  a  war  The  united 
measure  in  1916  to  construct,  equip,  purchase,  lease,  or  charter  ping  Board 
vessels  suitable  for  use  as  naval  auxiliaries  in  time  of  war,  and 
it  may  lease,  sell,  or  charter  such  vessels,  under  the  regulations 
provided  by  the  president,  to  citizens  of  the  United  States.    The 
board  is  authorized  to  organize  one  or  more  corporations  for  the 


The  Alien 

Property 

Custodian 


The  United 
States  Tariff 
Commission 


270    THE  GOVERNMENT  OF  THE  UNITED  STATES 

purchase,  construction,  lease,  or  charter  of  vessels.  It  also  has 
some  supervision  over  common  carriers  in  that  certain  contracts 
and  agreements  must  be  filed  with  the  board,  and  complaints 
may  be  made  to  it.  It  consists  of  five  members  appointed  by 
the  president,  with  power  to  appoint  its  own  secretary  and  naval 
architects,  special  experts,  and  examiners.  Other  employees  are 
under  the  civil-service  regulations. 

The  Alien  Property  Custodian  had  power  to  receive,  manage, 
or  sell  the  property  of  enemy  aliens.  Under  this  power  a 
large  number  of  very  important  industries  were  taken  from  their 
owners  and  were  administered  or  sold  under  the  regulations  of 
the  custodian. 

The  United  States  Tariff  Commission  was  appointed  by  act 
of  Congress  in  1916  to  investigate  the  administration,  operation, 
and  effects  of  the  customs  laws  and  their  relation  to  the  federal 
revenues.  The  information  which  this  commission  collects  is 
to  be  put  at  the  disposal  of  the  president,  the  Ways  and 
Means  Committee  of  the  House,  and  the  Finance  Committee 
of  the  Senate. 


CHAPTER  XI 

THE  CONSTITUTIONAL   PROVISIONS  CONCERNING 
THE  ORGANIZATION  OF  CONGRESS  l 

The  employment  of  the  word  "  Congress  "  to  designate  the 
legislative  assembly  of  the  United  States  was  not  accidental,  word6" con- 
Deliberate  design  and  precedent  alike  suggested  the  name.  The  Sgisiaturethe 
meetings  of  the  colonial  governors,  the  gatherings  which  pre-  of  a  federal 
ceded  the  Revolution,  and  the  assembly  of  the  Confederation 
were  all  so  designated.  But  more  important  than  precedent,  the 
formation  and  design  of  the  body  demanded  the  choice  of  a 
name  which  should  distinguish  it  from  the  old  colonial  assemblies 
and  the  legislatures  of  the  states,  These  bodies  were  the  legis- 
lative assemblies  of  single  sovereign  or  partially  sovereign  states. 
The  citizens  owed  but  a  single  allegiance  —  allegiance  to  their 
respective  states.  In  the  words  of  political  science,  they  were 
simple  states,  as  contrasted  with  confederate  or  federal  states^ 
Not  so  with  the  United  States.  The  Confederacy  was  a  league  ; 
the  new  government,  about  to  be  established,  was  a  federal  state, 
composed  not  of -one  single  sovereign  political  unit  but  of  the 
states,  each  sovereign  in  all  fields  not  delegated  to  the  federal 
government.  The  legislative  body  must  represent,  therefore,  not 
a  single  political  unit  but  many  units.  The  meaning  of  the 
terms  "  legislature,"  "parliament,"  and  "assembly"  had  been 
restricted  by  custom  to  the  meeting  of  representatives  of  single 
states.  The  use  of  the  word  "  Congress,"  itself  a  diplomatic 
term,  connoted  the  idea  of  a  meeting  of  representatives  or 
envoys  from  many  states. 

The  true  significance  of  the  name  "  Congress,"  as  designating 
an  assembly  of  diplomats,  is  seen  from  the  structure  and  work- 
ing of  both  the  Senate  and  House  of  Representatives.  In  the 

1  All  legislative  powers  herein  granted  shall  be  vested  in  a  Congress  of  the 
United  States,  which  shall  consist  of  a  Senate  and  House  of  Representatives. 
—  The  Constitution  of  the  United  States,  Article  I,  Sect,  i 

271 


272    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Senate  it  is  the  more  obvious.  Even  to-day  senators  sometimes 
speak  of  themselves  as  ambassadors  of  their  state.  The  equal 
number  assigned  to  every  state,  large  or  small,  the  method  origi- 
nally prescribed  for  their  election,  and  the  political  influence  of 
the  individual  senators  all  tend  to  emphasize  this  idea.  Even 
party  ties,  strong  as  they  are,  may  be  broken  with  impunity  when 
conflicting  with  the  interests  of  the  states.  Thus  the  Democrats 
in  1913  were  deprived  of  the  votes  of  several  Democratic  sen- 
ators, who  felt  that  the  provision  for  free  sugar  in  the  Underwood 
Tariff  Bill  would  injure  the  industries  of  their  states. 

In  the  House  of  Representatives  this  characteristic  is  less 
obvious.  Nevertheless,  it  exists  to  a  very  real  extent.  The  quali- 
fication for  membership,  constitutional  and  customary,  makes  the 
representative,  to  a  very  real  degree,  a  delegate  from  the  dis- 
trict which  chooses  him.  As  will  be  seen,  favors  gained  for  the 
district  —  public  buildings,  improvements,  pensions,  claims,  and 
offices  —  too  often  are  the  requisites  for  political  preferment ; 
nor  will  distinguished  service  to  the  nation  as  a  whole  often  out- 
weigh the  local  claims  and  demands  for  special  consideration 
for  the  district. 

The  result  is  unfortunate  both  from  the  point  of  view  of 
the  character  of  the  members  of  Congress  and  the  quality  of  the 
work  they  do.  The  successful  "log  roller"  who  obtains  legisla- 
tion pleasing  to  his  constituency  too  often  seeks  and  receives  the 
support  of  the  people.  The  time  and  energy  of  Congress  is 
frittered  away  in  meeting  purely  local  demands,  and  too  often 
wise  and  statesmanlike  measures  of  national  importance  are 
saddled  with  restrictions  and  exemptions  in  favor  of  some  influ- 
ential locality.  In  England  it  is  far  otherwise.  Legislation  of  a 
purely  local  character — "private  bill  legislation" — has  a  pro- 
cedure which  is  semijudicial  in  form  and  entirely  different  from 
the  great  political  measures.  Members  of  Parliament,  although 
chosen  by  local  constituencies,  hold  themselves  bound  to  repre- 
sent the  country  at  large,  not  solely  their  local  constituencies,  and 
have  neither  the  opportunity  nor  the  burden  of  satisfying  the  local 
desires  for  national  favors.  The  ablest  leaders  of  the  party  are  sure 
of  election  from  some  constituency  and  are  thus  enabled  to  lead 
and  direct  the  national  legislation  unhampered  by  local  demands. 


THE  ORGANIZATION  OF  CONGRESS  273 

Congress  consists  of  two  bodies,  a  Senate  and  a  House  of  congress  a 
Representatives.  It  has  been  said  that  the  framers  of  the  Con-  body 
stitution,  in  the  attempt  to  give  to  the  United  States  an  improved 
English  government,  blindly  copied  this  feature  from  the  English 
system,  but  other  examples  were  closer  at  hand.  Most  of  the 
•states  had  legislatures  of  two  Houses,  and  the  Constitution  more 
nearly  resembles  an  adaptation  of  the  composite  constitutions  of 
the  states  than  a  slavish  imitation  of  Great  Britain.  Furthermore 
both  precedent  and  experience  in  America  pointed  to  this  form. 
All  the  colonies,  save  Pennsylvania,  had  been  accustomed  to  a 
second  chamber,  smaller  in  numbers  and  more  conservative  in 
action  than  the  lower  chamber,  and  in  spite  of  many  frequent 
disagreements  and  much  friction  this  part  of  the  system  had 
worked  well  and  was  so  satisfactory  that  it  was  carried  over  into 
the  constitutions  of  all  but  one  of  the  states.  The  Congress 
of  the  Confederation  alone  was  a  single-chambered  assembly, 
but  the  convention  of  1787  was  summoned  to  amend  rather 
than  to  perpetuate  the  Confederation. 

Certain  practical  political  considerations  made  the  adoption  of  Bicameral 

i  •  11-1  -r-         i  r      n    legislature 

a  bicameral  legislature  necessary.     Equal  representation  of  all  offered  a 
the  states  had  not  worked  satisfactorily  in  the  old  Congress.   But  compromise 
the  smaller  states,  jealous'  of   their  larger  neighbors,   refused  |J*™Jd 
to  surrender  entirely  their  privileges.    The  adoption  of  a  two-  small  states 
chambered  legislature  presented  the  opportunity  for  a  compro- 
mise.   In  the  House  of  Representatives  numbers  were  to  have 
weight,  and  each  state  was  represented  roughly  in  accordance 
with  its  population.    In  the  Senate  each  state  alike  was  to  have 
two  representatives,  and  their  equality  in  the  federal  union  was 
thus  recognized. 

Political  experience  has  quite  generally  justified  the  use  of  two-  political 
chambered  legislatures.  Certain  very  important  advantages  are 
gained  by  these  means.  Short  terms  and  frequent  elections  in 
one  body  allow  the  immediate  influence  of  popular  opinion  which 
is  thought  necessary  for  popular  control.  Longer  terms  and  elec- 
tions less  frequent  give  the  other  chamber  the  opportunity  to 
acquire  experience,  develop  traditions,  and  learn  to  distinguish 
between  the  temporary  ebullition  of  discontent  and  a  genuine 
popular  desire.  A  second  chamber,  in  theory  at  least,  is  a  check 


President 
Wilson  holds 
the  Senate 
more  repre- 
sentative, 
than  the 
House 


Sessions  of 
Congress 


The  long 
session 


The  short 


274    THE  GOVERNMENT  OF  THE  UNITED  STATES 

upon  hasty  and  ill-considered  legislation.  A  second  chamber, 
moreover,  gives  an  opportunity  to  apply  different  principles  of 
representation.  In  Europe  the  second  chambers  of  the  legisla- 
tures are  generally  composed  of  representatives  of  the  upper 
class,  of  wealth  or  official  position,  chosen  in  a  different  way  and 
by  a  different  process  from  the  popularly  elected  chamber.  In 
the  United  States  the  establishment  of  the  Senate  gave  the 
opportunity  to  represent  not  merely  population  but  sections  of 
the  country.  As  President  Wilson  has  well  pointed  out,  the 
Senate  in  representing  the  states  is  more  truly  representative,  not 
necessarily  of  population  but  of  the  characteristics  of  the  whole 
country.  In  the  House  members  from  fourteen  large  states  pos- 
sess an  actual  majority,  while  the  sparsely  settled  communities, 
although  receiving  their  proportionate  number  of  representatives, 
are,  for  practical  purposes,  unrepresented.  In  the  Senate  every 
state,  and  every  section  of  the  country,  is  represented  equally. 
Thus  no  one  characteristic  of  the  country  is  without  its  influence, 
and  public  opinion,  which  does  not  wholly  depend  upon  mere 
numbers,  is  justly  and  equitably  represented.1 

Although  the  Constitution  2  sets  the  first  Monday  in  December 
as  the  normal  time  for  the  meeting  of  Congress,  a  resolution  of  the 
Congress  of  the  Confederation  fixed  Wednesday,  the  fourth  of 
March,  as  the  date  on  which  the  new  government  should  go  into 
operation.  At  noon  upon  the  fourth  of  March  the  terms  of  all 
elected  officers  begin  and  expire  —  while  Congress  itself  does  not 
normally  assemble  until  the  following  December.  Thus  it  happens 
that  there  are  two  regular  sessions  of  each  Congress:  (i)  the 
long  session,  which  normally  begins  in  December,  but  may  be 
summoned  any  time  after  the  previous  fourth  of  March,  and 
continues  until  dissolved,  usually  in  the  following  summer ;  and 
(2)  the  short  session  which  extends  from  the  next  December  until 
the  fourth  of  the  March  following.  Congress,  however,  may  by 
law  appoint  a  different  day  of  assembling,  and  during  the  diffi- 
culties with  President  Johnson,  the  beginning  of  the  first  session 

1  See  Woodrow  Wilson,  The  Constitutional  Government  in  the  United  States, 
chap.  v. 

2  The  Congress  shall  assemble  at  least  once  in  every  year,  and.  such  meeting 
shall  be  on  the  first  Monday  in  December,  unless  they  shall,  by  law,  appoint  a 
different  day.— The  Constitution  of  the  United  States,  Article  I,  Sect,  iv,  clause  2 


THE  ORGANIZATION  OF  CONGRESS*  275 

of  each  Congress  was  fixed  on  March  4.     This  law  was  soon 
repealed.   The  president,   moreover,   may  summon  special  ses- 
sions of  either  the  Senate  or  Congress.    Each  incoming  presi- 
dent ordinarily  summons  a  special  session  of  the  Senate  for  the 
confirmation  of  his  cabinet  '  advisers  ;  and  may,  if  the  party's 
Jegislative  program  is  pressing,   snmmon  a  special  session  of 
Congress.     This  has  been   done  by  '  both  President  Taft  and 
President  Wilson  to  put  through  the  tariff  measures  of  their 
respective   parties.     Moreover,   since    the    second   Congress  of  congress 
President  Taft's  administration  was  summoned  to  pass  certain  con*Suou 
appropriation  bills  and  President  Wilson's  legislative  program  session 
required  extra  sessions,  Congress  has  been  in  almost  continuous 
session  since  1909. 

The  difference  between  the  date  of  meeting  and  the  dates  on  Effect  of  the 
which  members  of  Congress  are  elected  brings  about  a  curiously 


unfortunate  condition.     Members  of  Congress  are  elected  four  Jjjjion  ana 
months  before  they  can  possibly  take  their  seats  and  thirteen  the  opening 

of  Congress 

months  before  the  first  regular  session  of  Congress.  The  result 
is  that  the  membership  of  even  a  new  Congress  reflects  conditions 
which  existed  at  least  four  months,  normally  a  year,  and  actually 
for  an  even  longer  period  before  the  session.  Moreover,  the  last 
session  of  a  Congress  does  not  meet  until  its  successor  has  been 
chosen.  Thus  the  second  session  of  the  6  5th  Congress,  elected 
in  November,  1916,  with  a  Democratic  majority,  met  Decem- 
ber 2,  1918,  and  continued  to  sit  until  March  4,  1919,  although 
the  elections  for  the  66th  Congress,  which  took  place  in  Novem- 
ber, 1918,  resulted  in  a  Republican  majority.  A  Congress  elected 
three  years  previously  may  thus  not  merely  reflect  the  opinion  of 
that  time  but  negative  and  prevent  the  immediate  realization  of 
public  opinion  as  expressed  at  the  time  of  its  last  session. 

The  constitutional  qualifications  for  membership  l  in  the  House  constitu- 
of  Representatives  are  three  :  (i)  age,  (2)  United  States  citizen- 
ship,  (3)  inhabitancy  of  the  state  from  which  he  shall  be  chosen. 
To  be  an  inhabitant  of  the  state  from  which  he  shall  be  chosen 
is  a  more  severe  test  than  citizenship  in  the  state.    Citizenship 

1  No  person  shall  be  a  Representative  who  shall  not  have  attained  to  the  age 
of  twenty-five  years,  and  been  seven  years  a  citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  inhabitant  of  that  State  in  which  he  shall  be 
chosen.  —  The  Constitution  of  the  United  States,  Article  I,  Sect,  ii,  clause  2 


custom  adds 
district* 


untortunate 
tomary  re-8 


district 


?hheesoi°eu!nd 
flnai  judge  of 


Sntests 


276    THE'  GOVERNMENT  OF  THE  UNITED  STATES 

and  residence  may  depend  upon  declaration,  while  habitancy  "  is 
a  physical  fact  which  may  be  proved  by  eyewitnesses."  1 

To  these  constitutional  requirements  custom  usually  adds  one 
more  —  residence  in  the  district  which  the  member  represents. 
Remembering  that  Congress  differs  from  other  legislative  assem- 
blies in  its  quasi-ambassadorial  character,  the  constitutional  re- 
quirement of  habitancy  in  a  state  seems  reasonable.  But  there 
is  less  defense  for  the  extra-constitutional  and  customary  require- 
ment of  residence  in  the  district.  It  may  be  argued  that  such 
residence  enables  a  Congressman  to  represent  better  the  opinion 
and  desires  of  his  constituents ;  and  perhaps,  when  the  districts 
were  small,  such  might  have  been  the  case.  At  present,  how- 
ever, when  the  population  of  the  districts  is  greater  than  the 
population  of  some  states,  the  personal  acquaintance  of  the  rep- 
resentative must  necessarily  be  limited.  The  system  has  another 
unfortunate  aspect.  Since  every  Congressman  must  be  a  residen 
of  the  district  he  represents,  a  defeated  candidate  cannot  seek 
another  constituency.  He  must  therefore  satisfy  the  local  organ 
ization  and  local  appetite  for  governmental  favors  in  order  to 
retain  his  seat.  Conversely,  the  House  of  Representatives  may 
be  deprived  of  a  valuable  leader  because  he  fails  to  satisfy  the 
electorate  in  some  particular  district.  Thus  Mr.  Littlefield  of 
Maine,  chairman  of  the  Committee  on  Judiciary,  was  barely 
elected  in  1906  and  decided  not  to  be  a  candidate  in  1908 
and  William  McKinley  through  certain  changes  made  in  his 
district  by  his  opponents  was  not  returned  to  meet  the  attack 
upon  the  tariff  which  bore  his  name. 

The  House  is  the  judge  of  these  qualifications  and  its  decision 
is  final.2  Questions  concerning  disputed  elections  and  qualifica- 
tions are  referred  to  one  of  the  three  standing  committees  upon 
elections  of  the  House.  The  process  is  essentially  a  judicial  one 
and  sometimes  it  is  conducted  in  a  judicial  manner,  by  hearing 
and  examining  witnesses  and  taking  evidence  under  oath,  but  the 
final  action  is  generally  determined  by  political  considerations. 

1  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  I, 
p.  525,  quoting  from  Foster,  Commentaries,  Sect.  62. 

2  Each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications 
ts  own  members.  —  The  Constitution  of  the  United  States,  Article  I,  Sect. 

clause  i 


THE  ORGANIZATION  OF  CONGRESS  277 

If  the  majority  needs  the  contested  seat  the  evidence  will  usually 
seem  so  conclusive  to  the  committee,  whose  majority  reflects  the 
majority  of  the  whole  House,  that  its  decision  will  be  sustained 
with  little  hesitation.1 

Even  where  the  member  has  been  allowed  to  take  his  seat  Expulsion 
and  the  oath,  the  majority,  by  a  bare  plurality,  may  hold  that  he 
has  not  complied  with  the  qualification  and  declare  the  seat 
vacant.  This  process  is  quite  different,  from  expulsion,  which 
requires  a  two-thirds  vote,  and  may  be  applied  for  any  offense 
the  House  deems  worthy  of  such  punishment.2 

The  first  disability,  3  and  that  which  most  sharply  distinguishes  Disabilities 
the  congressional  system  in  the  United  States  from  the<  parlia-  ° 


mentary  system  in  foreign  countries,  is  that  no  officer  of  the  (i)  May  not 
United  States  shall  be  a  member  of  Congress.    In  England  and  office 
France  the  members  of  the  cabinet  generally  must  be  members  [contrast 
of  the  legislature,  subject  to  its  criticism  and  liable  to  removal  J£tinCpariia- 
at  its  pleasure.    In  1787,  however,  the  Philadelphia  Convention 
with  the  remembrance  of  the  "  King's  Friends  "  and  the  possi- 
bility of  legislative  corruption  by  appointments  at  the  hands  of 
the  executive  fresh  in  their  minds,  decided  upon  the  opposite 
course.    In  so  doing  they  were  carrying  to  its  logical  consistent 
conclusion  the  theory  of  the  separation  of  powers  of  the  govern- 
ment in  which  they  so  firmly  believed.    But  they  secured  freedom 
from  the  possibility  of  executive  interference  by  the  surrender  of 
legislative  control. 

Even  more  stringent  prohibitions  were  adopted.    No  member 
of   Congress  may  be  appointed  to  any  office  which  has  been 

1  It  is  a  familiar  story  that  Thaddeus  Stevens  chanced  one  day  to  enter  the 
House  at  the  very  moment  when  the  roll  was  being  called  upon  an  election  con- 
test.   As  the  call  had  nearly  reached  his  name  and  he  wished  to  inform  himself 
instantly  how  to  vote,  he  hailed  the  Republican  nearest  him  with  the  question, 
"  Which  is  our  damned  rascal  ?  "  That  covered  the  whole  issue.  —  G.  H.  Haynes, 
The  Election  of  Senators,  p.  227 

2  Each  House  may  .  .  .,  with  the  concurrence  of  two  thirds,  expel  a  member.  — 
The  Constitution  of  the  United  States,  Article  I,  Sect,  v,  clause  2 

3  No   Senator  or  Representative  shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  office  under  the  authority  of  the  United  States, 
which  shall  have  been  created,  or  the  emoluments  whereof  shall  have  been 
increased,  during  such  time  ;  and  no  person  holding  any  office  under  the  United 
States  shall  be  a  member  of  either  House  during  his  continuance  in  office.  —  The 
Constitution  of  the  United  States,  Article  I,  Sect,  vi,  clause  2 


1 3 )  May  not 
be  appointed 
to  an  office 
created  during 
his  term 


[This  does  not 
include  serv- 
ice on  com- 
missions or 
state  offices] 


(3)  May  not 
be  appointed 
to  an  office 
the  salary  of 
which  has 
been  increased 
during  his 
term 

[Case  of 
Senator  Knoz] 


Disability  in 
the  Four- 
teenth 
Amendment 


278    THE  GOVERNMENT  OF  THE  UNITED  STATES 

created  during  the  time  for  which  he  was  elected.  It  will  be 
remembered  that  the  courts  have  defined  an  office  as  "...  a 
public  station,  or  employment,  conferred  by  the  appointment  of 
government.  The  term  embraces  the  ideas  of  tenure,  duration, 
emolument,  and  duties  .  .  .  [which]  duties  were  continuing  and 
permanent,  not  occasional  or  temporary."  1  Thus  while  seats  in 
the  House  and  Senate  have  often  been  vacated  because  of  the 
acceptance  of  some  executive,  judicial,  diplomatic,  or  military 
appointment,  it  has  been  the  practice  to  allow  a  member  to  serve 
upon  commissions,  boards  of  trustees,  and  the  like.  It  should  be 
noted,  moreover,  that  the  disqualification  does  not  apply  to  state 
offices.  Nevertheless,  Senator  La  Follette  did  not  appear  in  the 
Senate  until  his  term  as  governor  of  Wisconsin  had  expired, 
while  Senator  Johnson  of  California  resigned  from  the  governor- 
ship, although  there  was  nothing  in  the  federal  Constitution  to 
prevent  them  from  occupying  both  offices  simultaneously. 

The  prohibition  is  still  more  comprehensive  and  forbids  the 
appointment  of  any  member  of  Congress  to  a  position  the  emol- 
ument of  which  shall  have  been  increased  during  the  time  for 
which  he  shall  have  been  elected.  In  1910  a  technical  violation 
of  the  spirit  of  this  restriction  occurred.  Congress  had  voted  to 
increase  the  salaries  of  the  cabinet  officers.  Senator  Knox,  who 
was  a  member  of  the  Senate  at  the  time  the  vote  was  taken,  was 
later  appointed  Secretary  of  State  by  President  Taft.  In  order 
to  avoid  an  open  violation  of  this  restriction,  the  salary  of  the 
Secretary  of  State  was  reduced  to  its  former  figure.  This  action 
was  subject  to  criticism  even  by  so  stanch  a  Republican  and  sup- 
porter of  the  administration  as  Representative  Mann  of  Illinois.2 

At  the  close  of  the  Civil  War  the  Fourteenth  Amendment 
added  another  disqualification  to  the  effect  that  no  person 
should  be  a  representative  or  senator  who  had  previously  taken 
an  oath  as  member  of  Congress,  officer  of  the  United  States,  or 
a  member  of  a  state  legislature,  or  as  an  executive  or  judicial 
officer  of  any  state  to  support  the  Constitution  of  the  United 
States,  and  should  "have  engaged  in  insurrection  or  rebellion 
against  the  same,  or  given  aid  and  comfort  to  the  enemies 

1  United  States  v.  Hartwell,  6  Wall.  385,  393. 

2  Congressional  Record,  Vol.  XLIII,  Part  III,  p.  2400,  Feb.  15,  1909. 


THE  ORGANIZATION  OF  CONGRESS  279 

thereof."  1  Congress  by  a  two-thirds  vote  of  each  House  was 
allowed  to  remove  this  disability.  This  restriction,  at  first  so 
sweeping  as  to  disqualify  all  the  Southern  leaders,  was  soon 
modified  by  a  series  of  amnesty  acts,  so  that  now  it  is  believed 
that  there  is  no  person  alive  to  whom  it  would  apply. 

The  question  has  sometimes  risen  whether  either  Congress  or 
the  states  could  add  to  these  qualifications  or  restrictions.  Legally, 
such  is  an  impossibility.  Yet,  as  has  been  seen,  the  political  prac- 
tice of  the  states  has  added  residence  in  the  congressional  district 
to  the  list  of  requirements  —  a  requirement  showing  the  political  The  House 
policy  rather  than  a  qualification  enforceable  by  Congress.  But 
both  Houses  apparently  with  impunity  may  establish  additional 
qualifications.  In  1900  the  House  refused  to  seat  Mr.  Roberts  [case  of 
of  Utah,  a  polygamist,  although  it  was  argued  that  a  more  con- 
stitutional course  would  have  been  to  accept  his  credentials,  con- 
cerning which  there  was  no  dispute,  and  then  expel  him.  This 
would  have  required  a  two-thirds  vote,  which,  judging  by  the 
action  of  the  House,  could  have  been  obtained  easily.  Neverthe- 
less, the  House  by  a  large  majority  voted  to  exclude  Mr.  Roberts. 

Members  of  Congress  receive  salaries  paid  out  of  the  United  salaries 
States  Treasury.  In  the  days  of  the  Confederacy,  when  political 
service  was  regarded  as  a  burden,  and  when  the  states  paid  the 
salaries  of  the  members,  delegations  were  frequently  below  the 
numbers  assigned  them.  State  governments  refused  to  elect 
delegates  or  sought  to  economize  upon  their  salaries.  To  make 
sure  that  the  members  of  Congress  would  be  independent  of 
state  grant  it  was  decided  that  the  federal  government,  not  the 
states,  should  pay  their  compensation.  This  compensation,  at 
first  fixed  at  six  dollars  a  day,  was  increased  in  1817  to  eight 
dollars,  making  probably  an  average  salary  of  $1200  a  year.  In 
1855  the  salary  was  fixed  at  $3000,  which  was  increased  to  $5000 
in  1865.  In  1873  occurred  the  "salary  grab."  Upon  the  last 
day  of  the  session  an  act  was  passed  increasing  the  salaries  of 
most  of  the  officers  of  the  government,  and  the  salaries  of  the  mem- 
bers of  Congress  were  increased  to  $7000,  which  was  equivalent 
to  voting  a  bonus  to  each  representative.  Private  condemnation 
and  public  disapproval  forced  the  repeal  of  this  act,  as  far  as  the 

1  The  Constitution  of  the  United  States,  Amendment  XIV,  Sect.  iii. 


280    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Mileage 


Clerk  hire 


"Franking 
privilege  ' ' 


Freedom  from 
arrest 


salaries  of  Congressmen  were  concerned ;  and  they  remained  at 
$5000  until  1907,  when  they  were  increased  to  $7500. 

In  addition  to  the  salary,  Congressmen  receive  traveling  ex- 
penses fixed  in  1865  at  twenty  cents  a  mile  for  a  round  trip  each 
session.  This  is  far  in  excess  of  the  actual  cost,  and  it  has  been 
estimated  that  it  would  pay  the  fares  of  a  Congressman,  his  wife, 
and  three  children.  In  the  days  of  free  passes  on  the  railroads 
this  payment  was  clear  gain ;  sometimes  it  has  been  attempted 
to  vote  payments  when  the  sessions  of  Congress  were  separated 
by  only  a  "constructive  recess."  In  1914  the  House  reduced 
these  payments  to  a  more  reasonable  basis,  but  the  Senate 
refused  to  agree  to  the  reduction,  and  the  House,  apparently  very 
willingly,  concurred  without  a  roll  call.  Members  of  the  House 
also  receive  $1500  for  clerk  hire  to  be  expended  according  to 
their  discretion  ;  frequently  members  of  the  representative's  fam- 
ily act  as  secretaries  and  thus  increase  the  family  income.  In 
addition  to  the  individual  clerks  the  more  important  committees 
are  assigned  clerks,  stenographers,  and  messengers.  These  em- 
ployees are  carried  upon  the  House  roll  and  paid  by  the  sergeant 
at  arms,  but  the  positions  give  some  opportunity  for  political 
patronage.  The  members  upon  the  important  committees  enjoy 
extra  assistance.  An  allowance  for  stationery  is  given  to  each 
member.  Most  important,  however,  is  the  "  franking  privilege," 
by  which  members  may  send  free  through  the  mails  matter  stamped 
with  their  names.  In  campaign  times  this  privilege  is  grossly 
abused.  Political  speeches  are  delivered  in  both  Houses,  or,  under 
"  leave  to  print,"  find  their  way  into  the  Congressional  Record 
and  are  widely  distributed  under  the  frank  of  some  member. 
Thus  the  surplus  of  1910  of  the  Post-Office  Department  became 
a  deficit  of  over  $1,000,000  largely  because  of  the  "  extraordinary 
amount  of  franked  matter  mailed  in  the  political  primaries."  1 

Members  of  Congress  receive  the  traditional  privilege  of 
freedom  from  arrest  except  for  serious  crimes.2  This  privilege, 

1  American  Year  Book  (1913),  p.  559. 

.  They  shall  in  all  cases,  except  treason,  felony,  and  breach  of  the  peace, 
be  privileged  from  arrest  during  their  attendance  at  the  sessions  of  their  respec- 
tive Houses,  and  in  going  to  and  returning  from  the  same ;  and  for  any  speech 
or  debate  in  either  House  they  shall  not  be  questioned  in  any  other  place.  —  The 
Constitution  of  the  United  States,  Article  I,  Sect,  vi,  clause  i 


THE  ORGANIZATION  OF  CONGRESS  281 


however,  is  of  little  importance,  as  the  arrest  of  the  person  is  now 
almost  never  authorized  except  for  crimes  which  fall  within  the 
classes  exempt  from  the  privilege.1  In  addition,  the  members 
shall  not  be  subject  to  action  for  what  is  said  in  any  speech  or 
debate.  This  privilege  does  not  cover  outside  publication  of  such 
matter,  but  does  include  resolutions,  reports,  and  "  things  gener- 
ally done,  in  a  session  in  relation  to  the  business  before  it."2 

The  House  has  the  privilege,  common  to  most  legislative  choice  of 
assemblies,  of  choosing  its  presiding  officer  and  other  officials.3 
This  presiding  officer,  known  as  the  Speaker,  in  few  respects 
resembles  his  English  prototype.  Like  the  Speaker  of  the  House 
of  Commons,  he  is  charged  with  the  preservation  of  order,  and 
the  enforcement  of  the  rules  of  the  House.  He  is,  moreover, 
responsible  for  the  management  of  the.  House,  that  is,  the  sub- 
mission of  business  in  the  proper  parliamentary  order,  the  deci- 
sion of  points  of  order,  and  the  counting  of  votes'.  But  unlike  the 
English  Speaker,  the  Speaker  of  the  House  of  Representatives 
is  supposed  to  be  a  party  leader  rather  than  an  impartial  pre- 
siding officer.  His  tenure  of  office  therefore  depends  upon  the 
ability  of  his  party  to  retain  a  majority  in  the  House,  and  as  long 
as  the  party  majority  is  maintained,  or  when  the  party  regains 
power  after  an  interval  in  the  minority,  the  same  Speaker  is 
usually  reflected.4 

The  other  officers  chosen  by  the  House  are  the  sergeant  at  choice  of 
arms,  who  acts  as  the  disbursing  officer,  the  doorkeepers,  the  ° 
clerk  upon  whom  falls  the  responsibility  of  calling  each   new 
Congress  to  order  and  making  out  a  temporary  roll,  as  well  as 
of  keeping  the  records  of  the  House ;  the  assistant  clerks,  the 
chaplain,  and  numerous  subordinate  clerks.   It  is  a  mistake,  how- 
ever, to  assume  that  any  of  these  officers  are  in  any  real  sense 
elected  by  the  House.    The  elected  officers  are  chosen  in  a 
secret  caucus  of  the  majority  and  perforce  confirmed  by  the 
House.    The  minority  usually  formally  votes  for  some  candidate 

1  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  p.  1530. 

2  See  Kilboume  v.  Thompson,  103  U.S.  168. 

3  The  House   of   Representatives  shall   choose   their   Speaker  and   other 
Officers  ;  .  .  . .  —  The  Constitution  of  the  United  States,  Article  I,  Sect,  ii,  clause  5 

4  The  following  have  been  exceptions  to  the  general  rule  :  Bell,  1835  ;  Hunter, 
1841 ;  Keifer,  1889,  and  Cannon,  1919. 


Rules  of 
procedure 


Quorum 


282    THE  GOVERNMENT  OF  THE  UNITED  STATES 

for  Speaker,  who  in  recent  years  has  been  regarded  as  floor 
leader  for  the  minority. 

Both  the  House  and  Senate  have  elaborate  rules  and  regula- 
tions for  their  proceedings.  Those  of  the  Senate  can  be  changed 
only  by  amendment,  while  every  two  years  the  incoming  Congress 
adopts  its  own  rules.  It  is  customary,  however,  for  each  succes- 
sive Congress  to  adopt  the  rules  of  its  predecessors,  with  such 
slight  changes  as  may  seem  advisable  to  the  majority.  Thus,  in 
the  House  as  in  the  Senate  the  rules  change  very  slowly  and 
there  has  accumulated  a  mass  of  precedents  for  procedure  which 
not  only  determine  the  methods  of  legislation  but  for  practical 
purposes  define  the  powers  of  both  Houses.  Of  course,  however, 
by  unanimous  consent  these  rules  can  be  dispensed  with  or  by 
extraordinary  majorities  they  may  be  suspended  or  amended,  but 
ordinarily  they  serve  to  bind  both  bodies  quite  as  much  as  any 
constitutional  limitations.1 

For  the  transaction  of  business  a  quorum  is  necessary.2  By  the 
Constitution  this  is  fixed  at  a  majority.  This  is  an  unusually 
large  number.  In  the  House  of  Commons  with  seven  hundred 
and  seven  members  forty  is  a  quorum,  while  some  sorts  of  busi- 
ness may  be  transacted  in  the  Lords  with  only  three  members 
present.  In  the  House  and  in  the  Senate  a  number  less  than 
the  majority  may  either  adjourn  or  compel  the  attendance  of 
absent  members.  The  rules  of  the  House  require  the  presence 
of  every  member  unless  excused  or  necessarily  prevented ;  and 
in  the  Senate,  "  No  Senator  shall  absent  himself  from  the  service 
of  the  Senate  without  leave."  3  In  the  Senate  a  majority  of 
those  present  may  direct  the  sergeant  at  arms  to  request  or, 
if  necessary,  to  compel  -the  attendance  of  the  absent  members ; 
in  the  House  it  is  necessary  to  have  the  attendance  of  fifteen 
members,  including  the  Speaker,  to  compel  attendance.  Gener- 
ally the  attendance  is  surprisingly  good,  far  better  than  at  either  of 
the  Houses  of  the  English  Parliament.  At  times,  while  less  than 

1  See  Chapter  XIII. 

.  A  majority  of  each  shall  constitute  a  quorum  to  do  business ;  but  a 
smaller  number  may  adjourn  from  day  to  day,  and  may  be  authorized  to  compel 
the  attendance  of  absent  members,  in  such  manner,  and  under  such  penalties, 
as  each  House  may  provide.  — The  Constitution  of  the  United  States,  Article  I, 
Sect,  v,  clause  i  3  Rule  v>  Sect  L 


, 


THE  ORGANIZATION  OF  CONGRESS  283 

a  quorum  seem  to  be  actually  present  upon  the  floor,  they  may  be 
quickly  summoned  from  committee  rooms  and  office  buildings. 

Both  Houses  have  the  power  to  punish  their  members  for  Discipline 
disorderly  conduct.1  In  1842  Joshua  Giddings  of  Ohio  was  rep- 
rimanded by  the  House  for  introducing  resolutions  concerning 
slavery,  while  in  1863  Jesse  D.  Bright,  senator  from  Indiana, 
was  expelled  for  having  expressed  in  a  private  letter,  which  was 
later  published,  sympathy  for  the  rebellion.2  Both  Houses  have 
unseated  members  for  corrupt  practices  in  conrlection  with  their 
elections  —  a  process  quite  different  from  expulsion,  in  that  it 
requires  a  bare  majority  vote. 

Both  Houses  are  required  to  keep  journals  of  their  proceed-  journals 
ings.3  The  Constitution,  while  directing  the  publication  of  these 
journals,  allows  both  Houses  to  exercise  their  discretion  as  to  the 
suppression  of  such  parts  as  in  their  judgment  require  secrecy. 
The  complete  proceedings  of  the  House  are  now  published  daily 
in  the  Congressional  Record ;  and  all  the  proceedings  of  the 
Senate  except  when  in  "  executive  session."  Formerly  the  House 
held  secret  sessions,  the  last  being  in  1 8 1 1  ;  while  the  Senate  for 
two  years  after  its  organization  met  in  secret  and  did  not  open 
its  doors  to  the  public  until  1793,  when  the  distinction  between 
legislative  and  executive  sessions  was  established.  In  an  executive  Executive 
session,  or  meeting  from  which  the  public  is  excluded,  the  Senate 
is  usually  concerned  with  the  consideration  of  either  treaties  or 
nominations  by  the  president.  The  name  "  executive  "  is  applied 
to  these  sessions  because  the  Senate  is  acting  not  as  a  part  of 
the  legislative  assembly  but  as  a  council  for  the  executive,  giving 
its  consent  to  certain  acts  of  the  president.  Although  senators 
are  in  honor  bound  not  to  disclose  the  proceedings  until  the 
injunction  of  secrecy  is  removed,  the  newspapers  are  generally 
able  to  publish  a  fairly  accurate  account  of  what  has  taken  place. 

1  Each  House  may  .  .  .  punish  its  members  for  disorderly  behavior,  and,  with 
the  concurrence  of  two  thirds,  expel  a  member.  —  The  Constitution  of  the 
United  States,  Article  I,  Sect,  v,  clause  2 

2  Hinsdale,  American  Government,  p.  160. 

8  Each  House  shall  keep  a  journal  of  its  proceedings,  and  from  time  to  time 
publish  the  same,  excepting  such  parts  as  may  in  their  judgment  require  secrecy  ; 
and  the  yeas  and  nays  of  the  members  of  either  House  on  any  question  shall, 
at  the  desire  of  one  fifth  of  those  present,  be  entered  on  the  journal.  —  The 
Constitution  of  the  United  States,  Article  I,  Sect,  v,  clause  3 


Teas  and 
nays 


Neither 
House  may 
adjourn  for 
more  than 
three  days 
without  the 
consent  of 
the  other 


284    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Upon  the  demand  of  one  fifth,  the  yeas  and  nays  of  any  vote 
must  be  entered  upon  the  journal.  This  privilege  is  used  for 
two  purposes :  (i)  As  a  dilatory  measure  to  obstruct  or  delay 
legislation.  In  the  early  sessions*  this  feature  was  of  little  impor- 
tance, as  the  House  was  small  and  a 'roll  call  short.  But  in  a 
House  of  over  four  hundred  it  takes  nearly  an  hour  to  call  and 
correct  the  roll,  hence  the  demand  for  the  yeas  and  nays  becomes 
a  very  efficient  weapon  in  the  hands  of  the  minority.1  (2)  The 
roll  call  is  also  used  for  the  purpose  of  making  a  record.  This 
record,  made  upon  popular  measures,  may  be  used  to  win  local 
support ;  or  upon  measures  less  popular  it  furnishes  a  basis  for 
an  attack.  Thus  upon  one  of  the  Democratic  tariff  bills  Mr. 
Mann,  the  leader  of  the  minority,  forced  a  large  number  of  roll 
calls  in  order  to  put  the  Democrats  on  record  as  opposed  to 
amendments,  nominally  in  the  interest  of  labor,  but  actually  viti- 
ating the  whole  Democratic  policy.  The  following  extract  will 
show  an  example  of  a  record  vote : 

MR.  MURDOCH.  Is  the  gentleman  from  Virginia  in  favor  of  a  record 
vote  upon  this  proposition  ? 

MR.  GLASS.  I  have  no  objection  whatever.  .  .  .  (After  considerable 
debate  upon  the  Emergency  Currency  Act,  in  the  course  of  which 
Mr.  Murdoch  made  a  political  speech  attacking  "  the  money  power  of 
Wall  Street "  and  defending  the  country  banks,  he  said  :)  "  Mr.  Speaker 
...  I  ask  for  the  yeas  and  nays."  (The  vote  showed  331  yeas  and  6  nays, 
thus  Mr.  Murdoch  and  five  colleagues  had  the  satisfaction  of  setting 
forth  to  their  constituents  their  record  in  opposition  to  that  of  the  vast 
majority  of  the  House.)  2 

* 

Although  the  Senate  may  be  summoned  for  a  special  session, 
neither  House  of  Congress  may  adjourn  for  more  than  three  days 
without  the  consent  of  the  other.3  With  a  bicameral  legislature 
of  coordinate  houses  the  necessity  of  this  provision  in  regard  to 
adjournment  is  evident ;  yet  sometimes  it  leads  to  curious  results. 
For  example,  in  1909,  while  the  House  was  considering  the 

1  For  further  treatment  of  obstruction  see  Chapter  XIII. 

2  Congressional  Record,  August  3,  1914. 

8  Neither  House,  during  the  session  of  Congress,  shall,  without  the  consent  of 
the  other,  adjourn  for  more  than  three  days,  nor  to  any  other  place  than  that  in 
which  the  two  Houses  shall  be  sitting.  —  The  Constitution  of  the  United  States, 
Article  I,  Sect,  v,  clause  4 


THE  ORGANIZATION  OF  CONGRESS  285 

Payne  Tariff  Bill  the  Senate  met  every  three  days  and  solemnly 
adjourned;  and  in  like  manner  in  1913,  after  the  House  had 
passed  the  Underwood  Tariff  Bill  and  the  Currency  Bill,  it 
marked  time  by  meeting  only  to  adjourn  every  third  day. 

The  House  has  special  privileges  not  shared  by  the  Senate.  That  Revenue  wiis 
^of  originating  revenue  bills  and  of  impeachment  are  traditional 
with  the  English  House  of  Commons  and  the  houses  of  representa- 


tives  in  the  recently  formed  state  legislatures.  The  other  right,  nate  in  the 
that  of  the  election  of  the  president,  has  already  been  discussed. 
The  provision  concerning  the  origination  of  revenue  bills  was  the 
result  of  a  compromise.  The  large  states  conceded  the  equality 
of  representation  in  the  Senate  and  at  first  persuaded  the  conven- 
tion that  the  exclusive  power  of  originating  money  bills  should  be 
vested  in  the  House.  In  the  process  of  the  discussion  the  clause 
was  thrown  out,  thereby  endangering  the  whole  compromise. 
Finally  it  was  adopted  in  the  present  form  of  compromise.1 

In  practice  this  has  proved  of  little  importance.  The  Senate  Actual  pro- 
has  maintained  that  neither  an  appropriation  bill  nor  a  bill  to  revenue°n 
reduce  the  taxes  was  a  bill  for  raising  revenue  ;  while  the  House  le£islation 
has  asserted  that  a  bill  to  repeal  a  particular  tax  might  necessi- 
tate the  imposition  of  other  taxes,  and  hence  should  be  called  a 
revenue  bill.  In  actual  practice  all  the  annual  appropriation  bills 
and  the  great  revenue  bills  are  first  introduced  in  the  House. 
But  the  right  of  the  Senate  to  propose  amendments  has  been 
most  liberally  interpreted  by  both  Houses.  For  example,  in  1872 
the  Senate  substituted  for  a  House  bill  reducing  the  tax  upon 
coffee  a  bill  revising  the  whole  tariff.  This  caused  the  adoption 
of  a  resolution  declaring  that  the  action  of  the  Senate  was  contrary 
to  the  Constitution  and  that  the  Senate  substitute  should  be  laid 
upon  the  table.2  In  the  course  of  the  debate  Representative 
Garfield  made  a  speech  which  well  defines  the  theoretical 
relations  upon  this  limitation.  In  part  he  said  : 

We  must  not  construe  our  rights  so  as  to  destroy  theirs,  and  we 
must  take  care  that  they  do  not  so  construe  their  rights  as  to  destroy 

1  All  bills  for  raising  revenue  shall  originate  in  the  House  of  Representatives  ; 
but  the  Senate  may  propose  or  concur  with  amendments  as  on  other  bills.  — 
The  Constitution  of  the  United  States,  Article  I,  Sect,  vii,  clause  i 

2  P.  S.  Reinsch,  Readings  on  American  Federal  Government,  pp.  i,  299. 


286    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Garfleid  on  ours.    If  their  right  to  amendment  is  unlimited,  then  our  right  amounts 

III  seTa'te'to  to  nothing  whatever.    It  is  the  merest  mockery  to  assert  any  right. 

amendna  What,  then,  is  the  reasonable  limit  to  this  right  of  amendment  ?    It  is 

revenue  bills  ^^  to  ^  mind  ^  the  Senate>s  power  to  amend  is  limited  to  the 

subject  matter  of  the  bill.  That  limit  is  natural,  is  definite,  and  can  be 
clearly  shown.  ...  We  may  pass  a  bill  to  raise  $1,000,000  from  tea  or 
coffee;  the  Senate  may  move  so  to  amend  it  as  to  raise  $i 00,000, ooo- 
from  tea  and  coffee,  if  such  a  thing  was  possible ;  or  they  may  so  amend 
it  as  to  make  it  but  one  dollar  from  tea  and  coffee ;  or  they  may  reject 
the  bill  altogether.1 

Recent  Again,  in  1888-1889,  a  House  measure  to  reduce  taxation  and 

simplify  the  revenue  collection  was  transformed  by  the  Senate 
into  a  general  revision  of  customs  duties  and  internal  taxes.  In 
1909  while  the  Payne  Bill  was  under  consideration  by  the  House, 
the  Senate  Committee  on  Finance  was  busy  framing  its  own 
measure.  On  the  receipt  of  the  House  measure,  it  was  referred 
to  the  Committee  on  Finance,  who  reported  their  own  bill  as  a 
substitute,  which  with  amendments  was  adopted  by  the  Senate. 
In  conference  an  agreement  was  reached  —  the  Payne-Aldrich 
Act.  In  1913  the  Underwood  Tariff  Bill  returned  from  the 
Senate  with  six  hundred  and  seventy-four  amendments,  of  which 
four  hundred  and  twenty-six  were  accepted  without  change  by 
the  House,  ninety-six  were  compromised,  and  from  the  rest  the 
Senate  receded.2 

impeachment  Impeachment  proceedings  are  divided  between  the  House  and 
the  Senate.  The  formal  right  of  impeachment  rests  solely  with 
the  House,  while  the  power  to  try  impeachments  is  given  to  the 
Senate.3  Only  civil  officers  of  the  government  are  subject  to 
impeachment.  This  excludes,  of  course,  military  and  naval  officers 

1  P.  S.  Reinsch,  Readings  on  American  Federal  Government,  pp.  299,  300. 

8  American  Year  Book  (1913),  p.  371. 

8  The  Senate  shall  have  the  sole  power  to  try  all  impeachments  ;  when  sitting 
for  that  purpose,  they  shall  be  on  oath  or  affirmation.  When  the  President  of 
the  United  States  is  tried,  the  Chief  Justice  shall  preside ;  and  no  person  shall 
be  convicted  without  the  concurrence  of  two  thirds  of  the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend  further  than  to  removal 
from  office,  and  disqualification  to  hold  and  enjoy  any  office  of  honor,  trust,  or 
profit  under  the  United  States ;  but  the  party  convicted  shall  nevertheless  be 
liable  and  subject  to  indictment,  trial,  judgment,  and  punishment,  according  to 
law.  — The  Constitution  of  the  United  States,  Article  I,  Sect,  iii,  clauses  6  and  7 


THE  ORGANIZATION  OF  CONGRESS  287 

and,  by  a  decision  in  1798  in  the  case  of  Senator  Blount,  sen- 
ators and,  by  analogy,  representatives  as  well.1  The  offenses  for 
which  an  officer  may  be  impeached  are  defined  as  treason,  bribery, 
or  other  high  crimes  and  misdemeanors.2  Bribery  needs  no  defi- 
nition, and  treason  is  defined  by  the  Constitution,3  but  in  prac- 
^ice  high  crimes  and  other  misdemeanors  have  received  a  broad 
%efinition,'  and  out  of  nine  impeachments  held,  in  only  five  cases 
were  the  charges  based  on  official  crimes.4 

The  punishment  upon  conviction  is  confined  to  removal  from  Punishment 
office,  but  to  this  may  be  added  the  disqualification  of  never 
holding  any  office  of  profit,  trust,  or  honor  under  the  United 
Statesf  In  two  of  the  three  successful  trials  this  disqualification 
has  been  applied.  It  has  been  noted  that  the  president's  pardon 
does  not  extend  to  cases  of  impeachment,  and  that  should  a 
criminal  offense  be  the  cause  of  impeachment  further  punish- 
ment might  follow.  To  this  sentence  of  the  court  of  justice  the 
pfesidential  pardon  might  extend. 

Impeachment  proceedings  are  commenced  in  the  House  when  Procedure  in 
some  member  moves  as  a  question  of  the  highest  privilege  the 
impeachment  of  some  officer.  This  resolution  is  referred  to  a 
committee.  If  this  committee  reports,  upon  investigation,  in 
favor  of  impeachment,  and  is  sustained  by  the  House,  a  special 
committee  is  appointed  to  solemnly  impeach  the  officer  before 
the  Senate.  Articles  of  impeachment  are  prepared,  and  man- 
agers are  appointed  by  the  House  to  conduct  the  trial  on  behalf  of 
the  House,  when  the  Senate  notifies  the  House  that  it  is  ready 
to  proceed.  In  the  case  of  the  impeachment  of  the  president, 

1  See  D.  Y.  Thomas,  The  Law  of  Impeachment  in  the  United  States,  Amer- 
ican Political  Science  Review,  Vol.  II,  pp.  378-395  ;  W.  W.  Willoughby,  The 
Constitutional  Law  of  the  United  States,  chap.  Ivi. 

2  The  Constitution  of  the  United  States,  Article  II,  Sect.  iv. 

3  Treason  against  the  United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them  aid  and  comfort.    No  person 
shall  be  convicted  of  treason 'unless  on  the  testimony^fc  two  witnesses  to  the 
same  overt  act,  or  on  confession  in  open  court.  —  The  Constitution  of  the  United 
States,  Article  III,  Sect,  iii 

4  In  short,  then,  it  may  be  said  that  impeachment  will  lie  whenever  a  majority 
of  the  House  of  Representatives  are  for  any  reason  led  to  hold  that  the  incum- 
bent of  a  civil  office  under  the  United  States  is  morally  unfit  for  and  should  no 
longer  remain  in  his  position  of  public  trust.  —  W.  W.  Willoughby,  The  Consti- 
tutional Law  of  the  United  States,  Vol.  II,  p.  1124 


288    THE  GOVERNMENT  OF  THE  UNITED  STATES 

the  Chief  Justice  of  the   Supreme  Court  presides  rather  than 
the  vice  president,  who,  being  next  in  succession  to  the  presi- 
dent, would   benefit  by  his  removal.    The  accused  is  allowed 
counsel  and  the  trial  is  carried  on  by  means  of  examination 
of  witnesses  and  the  hearing  of  testimony.     Any  senator  may 
take  part  in  the  examination  of  a  witness  and  questions  of  pro-J 
cedure  are  decided  by  a  majority  vote.    Conviction  results  onl)F 
from  a  two-thirds  vote. 

The  number         There  have  been  nine  impeachments,  the  last  in  1912,  and 
men?**        only  three  convictions  :  two  district  judges,  and  one  judge  of  the 
ill-fated  Commerce  Court ;  one  president  and  one  Justice  of  the 
Supreme  Court  have  also  been  impeached,  but  acquitted  aftar  trial. 
Apportion-          The  original  Constitution  declared  that  direct  taxes  and  repre- 
sentation pr    .sentation  should  be  apportioned  among  the  states  according  to 
population  determined  "by  adding  to  the  whole  number  of  free 
persons,  including  those  bound  to  service  for  a  term  of  years,  and 
excluding  Indians  not  taxed,  three  fifths  of  all  other  persons.! 1 
The  original    This  section  represents  portions  of  three  of  the  compromises 
oTrep°reTeSn-    made  by  the  convention.    It  represents  a  victory  for  the  large 
2^0tnioannd      states  in  basing  representation  in  one  chamber  on  population. 
But  this  victory  was  not  a  complete  one,  and  was  subject  .to  the 
compromising  concession  to  the  slave  states,  that  three  fifths  of 
their  slaves  should  be  counted  as  persons  in  determining  their 
representation,  and  that  ojily  three  fifths  of  the  slaves  should  be 
counted  in  the  assessment  of  direct  taxes.    Without  this  section 
of  compromises  the  Constitution  must  have  failed  of  adoption. 
Effect  of  the        As  a  result  of  the  Civil  War  the  Thirteenth  Amendment, 

Thirteenth.         i_    i-  i  •  i 

Fourteenth,     abolishing  slavery,  put  an  end  to  the  class  of  "  other  persons  "  ; 

AmendmTnt?  and  the   Fourteenth  Amendment  declared  that  representation 

r!pr8esenta-e     should  be  distributed  according  to  population,  excluding  Indians 

£tionn  P°PU-   n°t  taxed,  and  affixed  penalties  for  abridging  representation  for 

any  reason  but  rebellion  or  other  crime;    while  the  Fifteenth 

Amendment  specially  forbade  the  abridgment  of  the  right  to 

vote  on  account  of  race,  color,  or  previous  condition  of  servitude. 

Thus  representation  is  specifically,  and  direct  taxes  were,  until  the 

Sixteenth  Amendment,  apportioned  solely  according  to  population 

determined  by  the  decennial  census. 

1  The  Constitution  of  the  United  States,  Article  I,  Sect,  ii,  clause  3. 


THE  ORGANIZATION  OF  CONGRESS  289 

The  original  article  provided  that  the  number  of  representa-  Number  of 
tives  should  not  exceed  one  for  every  thirty  thousand,  but  that 
each  state  should  have  at  least  one  representative.  This  ratio 
has  never  been  reached,  and  the  present  ratio,  based  upon  the  the  ratio 
census  for  1910,  is  one  for  every  211,877.  This  rati°  nas  been 
reached  by  a  steady  decrease  from  that  of  one  to  33,000  in  1789. 
Yet  with  the  decrease  in  the  ratio  the  size  of  the  House,  except 
from  1840  to  1860,  has  increased.  It  started  with  65,  the  num- 
ber fixed  by  the  Constitution,  and  now  lias  reached  435.  The 
method  of  apportionment  and  of  determining  the  ratio  and  fixing 
the  size  of  the  House  is  largely  experimental  and  subject  to 
many  changes  and  alterations  during'  the  -  process.  The  result 
sought  for  is  to  satisfy  each  state,  by  not  diminishing  but  by 
increasing,  if  possible,  its  representation ;  to  provide  for  an 
increase  of  representatives  from  the  growing  states,  to  avoid 
increasing  the  House  unduly,  and  to  find  a  ratio  which  will  leave 
unrepresented  as  small  fractions  as  possible.  After  the  ratio  and 
the  number  of  the  House  have  been  fixed  and  the  representation 
from  each  state  determined,  it  is  not  unusual  for  the  House  to 
vote  to  give  to  a  state  or  states  additional  representation.  The 
last  apportionment  act  (1911),  based  upon  the  census  of  1910, 
was  successful  in  many  of  these  respects.  It  increased  the 
House  by  only  36,  while  it  did  not  diminish  the  representation 
of  any  state.  Four  states,  however,  were  given  representatives 
solely  because  of  the  Constitutional  requirement.1 

The  Constitution  makes  no  provision  concerning  the  distribu-  Representa- 

of  the  representatives  apportioned  to  the  different  states. 
It  is  silent  whether  they  shall  be  elected  by  districts  or  at  large 


by  all  the  electors  of  the  state.    In  a  later  section2  it  is  provided  by  the  state 

legislatures 

that  this  shall  be  determined  by  the  state  legislatures,  leaving, 
however,  to  Congress  the  power  to  make  such  regulations  as 
shall  seem  necessary.  No  regulation  was  made  until  1842.  In 
that  year  the  apportionment  act  provided  that  every  state  entitled 
to  more  than  one  representative  should,  by  the  state  legislature, 

1  For  a  full  discussion  of  apportionment  see  P.  S.  Reinsch,  American  Legis- 
latures and  Legislative  Methods,  pp.  196-213;  Jesse  Macy,  "Apportionment,"' 
in  Cyclopedia  of  American  Government,  Vol.  I,  p.  56,  where  is  shown  by  means 
of  tables  the  decreasing  ratio  of  the  successive  apportionments.  • 

2  The  Constitution  of  the  United  States,  Article  I,  Sect,  iv,  clause  i. 


Exceptions 


Representa- 
tion by 
districts 
diminishes 
force  of 
party  ma- 
jorities and 
provides  for 
minority 
representa- 
tion 


Example  : 
Massachu- 
setts in  1912 

Vote  for 

presidential 

electors 


Vote  for 
governor 


Vote  for 
Congressmen 


290    THE  GOVERNMENT  OF  THE  UNITED  STATES 

be  divided  into  as  many  districts  composed  of  "  contiguous 
territory "  as  there  were  representatives  allowed  to  the  state, 
and  that  each  district  should  be  entitled  to  elect  one  representa- 
tive.1 In  1871  it  was  enacted  that  these  districts  should  contain 
as  nearly  as  practical  an  equal  number  of  inhabitants.  Subsequent 
legislation  has  allowed  states  to  retain  their  former  districts  and 
to  elect  any  new  representatives  allotted  to  them  at  large,  or,  if 
the  number  of  representatives  has  been  decreased,  to  elect  the 
whole  number  at  large  unless  the  state  legislature  may  decide 
otherwise. 

One  reason  for  this  interference  on  the  part  of  Congress  was 
to  diminish  the  force  of  party  majorities  and  to  provide  in  some 
slight  measure  for  minority  representation.  Representatives 
elected  at  large  reflect  the  party  majority  throughout  the  state 
and  ignore  any  minority,  no  matter  how  large.  Representatives 
elected  by  districts  make  it  possible  for  local  majorities  to 
receive  some  recognition.  But  while  these  local  majorities  have 
been  recognized  to  some  extent,  other  very  serious  examples  of 
misrepresentation,  both  as  regards  party  strength  and  party 
population,  have  resulted. 

Thus,  in  Massachusetts  in  1912,  a  year,  it  is  true,  when  tj^e 
Republican  party  was  split  by  the  Progressive  party,  the  vote 
cast  for  president  was  as  follows:  Wilson,  173,000;  Taft, 
156,000;  Roosevelt,  142,000;  giving  the  Democratic  candidate 
a  clear  plurality  of  17,000  over  his  nearest  rival,  and  thus 
giving  the  eighteen  electoral  votes  of  Massachusetts  to  the 
Democrats. 

For  governor,  likewise  elected  at  large,  a  similar  result  was 
obtained,  Foss  receiving  nearly  50,000  more  than  his  nearest 
rival.  A  very  different  condition,  however,  was  seen  in  the 
election  of  Congressmen.  A  total  of  about  468,000  votes  was 
cast,  of  which  189,000  were  for  Democratic  candidates,  180,000 
for  Republican  candidates,  92,000  for  Progressive  candidates, 
and  10,000  for  Socialist  candidates.  But  these  votes  were 
counted  by  districts,  with  the  result  that  the  Republicans,  casting 
only  about  38  per  cent  of  the  vote,  elected  nine,  or  56.25  per  cent, 
of  the  Congressmen ;  while  the  Democrats,  casting  over  40  per 

1  U.  S.  Stat.  at  Large,  Vol.  V,  p.  491. 


THE  ORGANIZATION  OF  CONGRESS-  291 


.cent  of  the  vote,  elected  seven,  or  43.75  per  cent,  of  the  Con- 
gressmen ;  and  the  Progressives  and  Socialists,  casting  19  per 
cent  and  2.1  per  cent  respectively,  obtained  no  representation. 
In  other  words,  216,000  votes,  or  46  per  cent,  were  represented 
by  Congressmen,  while  252,000,  or  53  per  cent,  were  unrepre- 
sented at  Washington.  If,  however,  all  the  Congressmen  had 
been  elected  at  large  like  the  presidential  electors  and  the 
governor,  and  if  the  voters  had  continued  to  vote  as  they  did,  — 
an  assumption  by  no  means  likely  to  be  true,  —  there  would 
have  been  still  larger  numbers  unrepresented.  For  example, 
the  Democrats,  casting  40  per  cent,  would  have  elected  100  per 
cent  of  the  Congressmen.  Or,  in  other  words,  60  per  cent  of 
the  votes  would  be  unrepresented  and  cast  in  vain  —  a  result 
even  more  startling  than  is  obtained  by  the  district  system. 

Various  remedies  such  as  proportional  representation  and 
cumulative  voting  have  been  tried,  but  the  results  so  far  obtained 
have  not  been  so  decisive  as  to  cause  the  system  to  spread. 

The  example  of  Massachusetts  has  been  taken  because  the  inMassa- 
districts  in  the  state  are  nearly  equal  in  population  (the  smallest 
containing  206,000  and  the  largest  217,000  in  1912  ;  216,000 
and  254,000  respectively  in  1915),  while  the  district  boundaries 
are  fairly  determined  and  inclose  territory  which  may  justly  be 
called  "  compact  and  contiguous."  These  conditions  are  not 
always  so  well  observed  in  other  states.  For  example,  as  regards 
population : 

The  fifteenth  congressional  district  (Republican)  in  New  York  (1905)   Not  so  in 
had  165,701  inhabitants,  while  the  eighteenth  (Democratic)  had  450,000 
inhabitants.    These  discrepancies  are  partly  due  to  the  necessity  of 
recognizing  units  of  local  government  such  as  counties,  townships,  and 
city  blocks  in  laying  out  the  district,  but  are  more  especially  due  to  the 
desire  of  the  majority  party  in  each  state  legislature  to  secure  as  many    . 
of  its  members  as  possible  in  Congress.1 

The    legislatures,    for    party    or    personal    advantage,    have  "Gerry- 
manipulated  the  district  lines  in  most  remarkable  ways.    "  Gerry- 
mandering "   —the  name  used  for  this  practice,  although  not 
the  practice  itself  —  originated  in  Massachusetts  in   1811   and 
to  a  greater  or  less  degree  has  been  almost  continuously  used  by 

1  C.  A.  Beard,  American  Government  and  Politics,  p.  235. 


Result  of 
gerry- 
mandering 
in  Ohio  on 
representa- 
tion in 
Congress 


"Gerry- 
mander " 
for  personal 
reasons 


Federal  elec- 
tions may  be 
under  control 
of  Congress 


292    THE-  GOVERNMENT  OF  THE  UNITED  STATES 

all  parties  in  most  states.  Extraordinary  examples  of  "  compact 
and  contiguous  "  territory  have  resulted  ;  for  example,  the/1  shoe- 
string "  district  of  Mississippi,  which  extended  almost  across  the 
state  from  north  to  southland  the  "  saddlebag  "  district  of  Illinois, 
which  was  composed  of  two  groups  of  counties  on  different 
sides  of  the  state,  so  connected  as  to  crowd  as  many  Democratic 
votes  as  possible  into  one  district.1 

As  far  back  as  1870  Representative  Garfield,  in  a  speech  in 
Congress,  pointed  out  that  in  1862  Ohio,  with  a  clear  Republican 
majority  of  about  twenty-five  thousand,  was  represented  in  Congress 
by  fourteen  Democrats  and  five  Republicans ;  while  in  the  next 
Congress  with  no  great  political  change  in  the  popular  vote, 
there  were  seventeen  Republicans  and  two  Democrats.  Although 
in  fact  the  Democrats  have  since  1862  had  the  popular  majority 
on  national  questions  only  once,  they  have  returned  a  majority 
of  the  Congressmen  four  times. 

But  the  "gerrymander"  is  sometimes  invoked  for  purely  per- 
sonal reasons.  The  doctrine  of  W.  T.  Price  of  Wisconsin,  that 
"apportionments  are  not  made  to  keep  men  in  Congress  but  to 
permit  other  men  to  get  there,"  2  often  expresses  the  truth.  A 
shrewd  and  skillful  politician  may  so  influence  the  committee  of 
the  state  legislature  charged  with  the  apportionment  that  a  dis- 
trict in  which  he  is  favorably  known  may  be  created  for  him. 
And,  conversely,  a  hostile  party  in  the  state  legislature  may  so 
alter  the  boundary  lines  that  Congress  may  be  deprived  of  the 
services  of  a  tried  leader  because  of  local  jealousy. 

The  control  of  congressional  elections  is  absolutely  in  the 
hands  of  Congress.3  This  power  of  control  was,  however,  never 
invoked  until  1842.  Since  then  it  has  been  invoked  several  times.4 

1  Reinsch,  American  Legislatures  and  Legislative  Methods,  p.  202.    See  also 
J.  R.  Commons,  Proportional  Representation,  chap,  iii,  for  maps  and  tables. 
The  illustrations  given  above  are  taken  from  this  source. 

2  Reinsch,  American  Legislatures  and  Legislative  Methods,  p.  201. 

8  The  House  of  Representatives  shall  be  composed  of  members  chosen 
every  second  year  by  the  people  of  the  several  States.  —  The  Constitution  of 
the  United  States,  Article  I,  Sect,  ii,  clause  i 

The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Repre- 
sentatives shall  be  prescribed  in  each  State  by  the  legislature  thereof ;  but  the 
Congress  may  at  any  time,  by  law,  make  or  alter  such  regulations,  except  as  to 
the  places  of  choosing  Senators.  —  Ibid.  Article  I,  Sect,  iv,  clause  i 

4  See  Chapter  VII. 


THE  ORGANIZATION  OF  CONGRESS  293 


he  adoption  of  the  Fifteenth  Amendment,  and  the  policy  The 
planned  by  the  North  for  the  reconstruction  after  the  Civil  War, 
produced  collisions  of  authority  which  revealed  certain  interest- 
ing  problems  and  limitations.  The  second  Enforcement  Act 
placed  the  election  of  representatives,  if  not  under  federal  con- 
trol, at  least  under  federal  supervision,  and  gave  federal  judges 
the  power  to  appoint  supervisors  and  United  States  marshals 
and  deputies  to  preserve  order.  This  right  of  control  was 
resisted  upon  the  ground  that,  although  Congress  might  make 
regulations  and  appoint  officers  to  enforce  them,  it  could  not 
direct  state  officers  in  the  execution  of  state  laws.  This  conten- 
tion, however,  was  not  sustained  by  the  Supreme  Court  in  its 
opinion  in  the  case  of  Ex  parte  Siebold,  where  it  said  : 

It  [Congress]  may  either  make  the  regulations,   or  it  may  alter  Regulations 
them.    If  it  only  alters,  leaving,  as  manifest  convenience  requires,  the   supersede88 
general  organization  of  the  polls  to  the  state,  there  results  a  necessary  state  laws 
cooperation  of  the  two  governments  in  regulating  the  subject.    But 
no  repugnance  in  the  system  of  regulations  can  arise  thence  ;  for  the 
power  of  Congress  over  the  subject  is  paramount.    It  may  be  exercised 
as  and  when  Congress  sees  fit  to  exercise  it.    When  exercised,  the 
action  of  Congress,  so  far  as  it  extends  and  conflicts  with  the  regula- 
tions of  the  state,  necessarily  supersedes  them.  .   .  . 

The  objection  that  the  laws  and  regulations,  the  violation  of  which  congress  may 
is  made  punishable  by  the  acts  of  Congress,  are  state  laws,  and  have 


not  been  adopted  by  Congress,  is  no  sufficient  answer  to  the  power  for  violations 

of  Congress  to  impose  punishment.     It  is  true  that  Congress  .has  tioniaws 

not  deemed  it  necessary  to  interfere  with  the  duties  of  the  ordinary 

officers  of  election,  but  has  been  content  to  leave  them  as  prescribed 

by  state  laws.    It  has  only  created  additional  sanctions  for  their  per-     . 

formance,  and  provided  means  of  supervision  in  order  more  effectu- 

ally  to    secure   such    performance.    The    imposition    of    punishment 

implies  a  prohibition  of    the   act   punished.    The    state   laws    which 

Congress  sees  no   occasion   to   alter,  but  which  it  allows  to  stand, 

are  in  effect  adopted   by  Congress.    It  simply  demands  their  fulfill- 

ment.   Content  to  leave  the  laws  as  they  are,  it  is  not  content  with 

the  means  provided  for  their    enforcement.     It  provides  additional 

means  for  that  purpose  ;  and  we  think  it  is  entirely  within  its  consti- 

tutional power  so  to  do.    It  is  simply  an  exercise  of  the  power  to  make 

additional  regulations.1 

1  looU.'S.  371,383,  388,  389. 


The  court's 
interpreta- 
tion of  the 
power  of 
Congress 
under  the 
Fifteenth 
Amendment 


Vacancies 


Qualifications 
for  voters 


294    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  court,  however,  has  insisted  upon  a  strict  interpretation 
of  the  phrases  of  the  Amendment.  Thus  in  1902,  in  James  v. 
Bowman?-  it  held  a  federal  act  unconstitutional  because  it 
attempted  to  punish  bribery  at  both  federal  and  state  elections. 
The  court,  summarizing  and  quoting  previous  decisions,  made 
these  four  points  :  (i)  Congress  has  complete  control  over  federal 
elections;  (2)  the  Fifteenth  Amendment  extended  this  power 
and  control  over  both  federal  and  state  elections ;  (3)  but  the 
power  derived  from  the  Fifteenth  Amendment  must  be  exercised 
in  the  enforcement  of  the  constitutional  prohibition  against  dis- 
crimination on  account  of  race,  color,  or  previous  condition  of 
servitude,  and  does  not  grant  to  Congress  general  powers  over 
state  elections  ;  (4)  that  the  enforcement  clause  of  the  Fifteenth 
Amendment  must  be  applied  solely  against  state  not  individual 
action. 

Recent  federal  legislation  under  the  regulative  power  of  Con- 
gress has  been  concerned  with  campaign  contributions  and 
expenses.2 

Vacancies  created  by  death  or  resignation  or  other  causes 
may  be  filled  by  special  election  held  by  order  of  the  governor 
of  the  state.  In  practice,  however,  it  is  optional  with  the  gov- 
ernor whether  such  shall  be  ordered  or  whether  the  district  go 
unrepresented.  Resignations  are  not  addressed  to  the  president 
or  to  the  Speaker  of  the  House,  but  to  the  state  governor.  It  is, 
however,  customary  to  notify  the  Speaker,  and  frequently  mem- 
bers send  their  resignation  to  him. 

The  original  constitutional  qualifications  for  electors3  reflect 
the  requirements  of  the  eighteenth  century.  At  the  time  of  the 
framing  of  the  Constitution  every  state  had  some  property  quali- 
fication, which  varied  with  the  importance  of  the  officers  to  be 
chosen.  In  general  the  lowest  qualification  was  for  the  election 
of  representatives  to  the  lower  or  more  numerous  branch  of  the 
state  legislatures ;  thus  it  was  the  intention  of  the  convention  to 

1  190  U.S.  127. 

2  See  pp.  136-137. 

...  the  electors  in  each  State  shall  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  State  Legislature.  —  The  Consti- 
tution of  the  United  States,  Article  I,  Sect,  ii,  clause  i  ;  also  Amendments 
XIV,  XV 


THE  ORGANIZATION  OF  CONGRESS  295 


make  the  qualifications  as  wide  as  the  states  themselves  allowed 
at  their  own  elections.  It  is  to  be  noted  that  these  qualifications  . 
were  determined  and  fixed  not  by  federal  but  by  state  laws.  Con- 
sequently there  has  always  been  great  diversity  among  the  states, 
the  newer  states  generally  allowing  manhood  suffrage,  while  the 
older  and  more  conservative  states  were  slow  to  remove  property 
and  other  qualifications.  In  few  states  were  negroes  allowed  to 
vote  before  the  Civil  War.  The  Fifteenth  Amendment,  however, 
limited  the  right  of  the  states  in  this  respect,  by  forbidding  the 
denial  of  the  right  to  vote  on  account  of  race,  color,  or  previous 
condition  of  servitude ;  while  the  Fourteenth  Amendment  de- 
clared that  persons  born  or  naturalized  in  the  United  States  should 
be  citizens  thereof  and  of  the  state  in  which  they  were  residing. 

As  has  been  shown,1  the  court  has  held  that  citizenship  did  The  Fifteenth 
not  necessarily  confer  the  right  to  vote,  nor  did  the  Fifteenth  circumvented 
Amendment  confer  the  suffrage,  but  it  did  invest  the  citizens  of  the 
United  States  with  a  new  constitutional  right  which  is  within  the 
protective  power  of  Congress.2    Nevertheless,  it  is  a  well-known 
.  fact  that  many  if  not  all  of  the  Southern  states  have  prevented 
most  of  the  negroes  from  voting.    This  is  accomplished  either  [The 
by  applying  some  educatioaaLtest  or  property  qualification    to  clause" 
whites  and  blacks  alike,  or  by  exempting  from  these  qualifications 
those  whose  ancestors  had  had  the  right  to  vote  —  the  so-called 
"  grandfather  clause." 

Until  icjTflf  seemed  impossible  for  the  negroes  to  get  relief 
from  the  courts.  This  was  largely  because  of  the  nature  of  the 
particular  cases  brought  before  the  court  and  kind  of  relief 
sought  for.  In  1914,  however,  a  case  came  under  an  amend- 
ment to  the  constitution  of  Oklahoma  where  the  issue  was 
squarely  met.  The  constitution  prescribed  a  literacy  test  which 
should  be  applied  to  all  voters.  In  1910  an  amendment  was 
adopted  part  of  which  read  as  follows : 

No  person  shall  be  registered  as  an  elector  of  this  state  or  be  allowed 
to  vote  in  any  election  held  herein,  unless  he  be  able  to  read  and  write 

1  Chapter  IV. 

2  The  right  of  exemption  from  discrimination  in  the  exercise  of  the  elective 
franchise  on  account  of  race,  color,  or  previous  condition  of  servitude.  —  United 
States  v.  Reese,  92  U.S.  214-215 


296    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  Okia-     any  section  of  the  Constitution  of  the  State  of  Oklahoma  ;  but  no  person 

?e0nu!rem»nts  who  was»  on  Januarv  x»  l866'  or  anv  time  Prior  tnereto>  entitled  to  vote 
under  any  form  of  government,  or  who  at  that  time  resided  in  some 
foreign  nation,  and  no  lineal  descendant  of  such  person,  shall  be  denied 
the  right  to  register  and  vote  because  of  his  inability  to  so  read  and 
write  sections  of  such  Constitution.  .  .  .. 

In  giving  the  opinion  on  the  case  of  Guinn  v.  United  States,1 
Chief  Justice  White  held  concerning  the  Fifteenth  Amendment  : 
(i)  that  it  did  not  take  away  from  the  state  governments  the 
general  power  over  the  suffrage  ;  (2)  but  that  it  did  diminish  the 
power  of  the  state  government  to  restrict  the  suffrage  on  account 
of  race,  color,  or  previous  condition  of  servitude  ;  (3)  that  while 
the  Fifteenth  Amendment  did  not  give  the  right  of  suffrage, 
"  its  prohibition  might  measurably  have  that  effect."  Concerning 
the  amendment  to  the  Oklahoma  constitution  he  said  : 

Chief  justice  It  is  true  it  contains  no  express  words  of  an  exclusion  from  the 
application  standard  which  it  establishes  of  any  person  on  account  of  race,  color, 
of  the  or  previous  condition  of  servitude  prohibited  by  the  Fifteenth  Amend- 

ment,  but  the  standard  itself  inherently  brings  that  result  into  existence 


Oklahoma  tbC  s*nce  ^  *s  ^ase<^  Purety  uPon  a  period  of  time  before  the  enactment  of 
clause  uncon-  the  Fifteenth  Amendment  and  makes  that  period  the  controlling  and 
dominant  test  of  the  right  of  suffrage.  In  other  words,  we  seek  in  vain 
for  any  other  ground  which  would  sustain  any  other  interpretation  but 
that  the  provision,  recurring  to  the  conditions  existing  before  the  Fif- 
teenth Amendment  was  adopted  and  the  continuance  of  which  the 
Fifteenth  Amendment  prohibited,  proposed  in  substance  and  effect 
lifting  those  conditions  over  to  a  period  of  time  after  the  Amendment 
to  make  them  the  basis  of  the  right  of  suffrage  conferred  in  direct  and 
positive  disregard  of  the  Fifteenth  Amendment.  And  the  same  result, 
we  are  of  the  opinion,  is  demonstrated  by  considering  whether  it  is 
possible  to  discover  any  basis  of  reason  for  the  standard  thus  fixed 
other  than  the  purpose  above  stated.  We  say  this  because  we  are  un- 
able to  discover  how,  unless  the  prohibitions  of  the  Fifteenth  Amend- 
ment w_ere  considered,  the  slightest  reason  was  afforded  for  basing  the 
classification  ufyn  a  period  of  time  prior  to  the  Fifteenth  Amendment. 
Certainly  it  cannot  b.e  said  that  there  was  any  peculiar  necromancy  in 
the  time  named  which  engendered  attributes  affecting  the  qualification 
to  vote  which  would  not  -exist  at  another  and  different  period  unless 
the  Fifteenth  Amendment  wias  in  view. 

1  238  LT-  s-  347.  364,  365- 


THE  ORGANIZATION  OF  CONGRESS  297 

Aside   from   the    qualifications,    extra-legally  erected    in   the  General 
South,  all  the  states  have  fixed  the  age  limit  at  twenty-one ;  all  S*  b°y  tiT 
but  nine  require  United  States  citizenship.    In  Alabama,  Arkan-  /J?1^ 
sas,  Indiana,  Michigan,  Missouri,  Nebraska,  South  Dakota,  Texas,   («)  citizen- 
and  Wisconsin,  a  declaration  of  intention  of  becoming  a  citizen 
is  sufficient,  and  the  anomalous  spectacle  is  presented  of  citizens 
of  foreign  states  taking  part  in  the  election  of  state  and  federal 
officers.     By  the  end  of  1918   fifteen  states  had  granted  full  [woman 
suffrage  to  women,1  while  in  many  others  they  are  allowed  to 
vote  at  certain  elections.    In  June,  1919,  Congress  submitted  to  [The proposed 
the  states  for  ratification  an  amendment  which  declared  that  the  amendment] 
right  to  vote  should  not  be  abridged  on  account  of  sex.    About 
a  third  of  the  states  require  an  educational  test  of  some  kind.   The  (3)  Educa- 
question  might  arise,  If  the  court  should  attempt  to  enforce  some 
congressional  legislation  under  the  sanction  of  the  Fourteenth  and 
Fifteenth  Amendments  against  those  states  which  deny  suffrage 
to  negroes,  would  not  the  other  states  where  citizens  are  denied 
the  right  to  vote  because  of  some  financial  or  educational  qualifi- 
cation be  also  liable  to  have  the  basis  of  their  representation 
reduced  "  in  the  proportion  which  the  number  of  such   male 
citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty- 
one  years  of  age"  ?   Commentators  upon  the  Constitution  do  not 
so  believe,  for  in  the  words  of  Cooley,  quoted  with  approval  by 
Professor  Willoughby : 

To  require  the  payment  of  a  capitation  tax  is  no  denial  of  suffrage,  (4)  Financial 
it  is  demanding  only  the  preliminary  performance  of  public  duty  and 
may  be  classed,  as  may  also  presence  at  the  polls,  with  registration,  or 
the  observance  of  any  other  preliminary  to  insure  fairness  and  protect 
against  fraud.  Nor  can  it  be  said  that  to  require  ability  to  read  is  any 
denial  of  suffrage.  To  refuse  to  receive  one's  vote  because  he  was  born 
in  some  particular  country  rather  than  elsewhere,  or  because  of  his 
color,  or  because  of  any  natural  quality  or  peculiarity  which  it  would  be 
impossible  for  him  to  overcome,  is  plainly  a  denial  of  suffrage.  But 
ability  to  read  is  within  the  power  of  any  man,  it  is  not  difficult  to  attain 
it,  and  it  is  no  hardship  to  require  it.  On  the  contrary  the  requirement 
only  by  indirection  compels  one  to  appropriate  a  personal  benefit  he 

1  Wyoming,  1890;  Colorado,  1893;  Utah,  1896;  Idaho,  1896;  Washington, 
1910;  California,  1911;  Arizona,  Kansas,  Oregon,  1912;  Montana,  1914  ;  Nevada, 
1914;  New  York,  1917;  Michigan,  South  Dakota,  Oklahoma,  1918. 


Constitu- 
tional re- 
quirements 
for  senators 


298    THE  GOVERNMENT  OF  THE  UNITED  STATES 

might  otherwise  neglect.  It  denies  to  no  man  the  suffrage,  but  the 
privilege  is  freely  tendered  to  all,  subject  only  to  a  condition  that  is 
beneficial  in  its  performance  and  light  in  its  burden.  If  a  property 
qualification,  or  payment  of  taxes  upon  property  when  one  has  none 
to  be  taxed,  is  made  a  condition  of  suffrage,  there  may  be  room  for 
more  question.1 

The  process  of  election  has  been  fully  treated  in  the  chapter 
on  "Party  Organizations."2 

THE  SENATE3 

The  constitutional  qualifications  for  a  senator  are  slightly  dif- 
ferent from  those  for  a  representative.  The  age  is  increased  to 
thirty  years,  the  requirement  of  citizenship  is  increased  from 
seven  to  nine  years,  and  the  provision  as  to  inhabitancy  in  the 
state  from  which  they  are  elected  is  required  of  senators  and 
representatives  alike.  The  extra-constitutional  requirement  of 
residence  within  the  district,  which  is  generally  enforced  upon 
representatives,  has  of  course  no  application  to  senators,  neverthe- 
less tradition  and  political  customs  often  demand  that  both  sen- 
ators should  not  come  from  the  same  region  of  the  state ;  while 
the  law  of  Maryland 4  formerly  required  that  one  senator  should 
be  a  resident  of  the  eastern  shore  and  one  of  the  western 
shore.  This  law,  however,  was  not  observed  by  the  state  legisla- 
ture, nor  would  the  Senate  enforce  it  as  a  disqualification  for  a 
successful  candidate.  Taken  as  a  whole,  the  qualifications  for 
the  Senate  aimed  to  create  a  body  composed  of  older  and  more 
experienced  men,  who  at  the  adoption  of  the  Constitution  had 
been  longer  associated  with  the  fortunes  of  the  country.  The 
political  importance  of  the  Senate  and  the  fact  that  election  to 
it  is  regarded  as  the  crowning  honor  of  a  politician's  career,  quite 
as  much  as  any  formal  requirements,  have  resulted  in  accom- 
plishing this  purpose.  Ever  since  the  Jacksonian  era  the  Senate 

1  The  Constitutional  Law  of  the  United  States,  Vol.  I.  p    C7C 

2  See  Chapter  VI. 

3  No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  age  of 
thirty  years,  and  been  nine  years  a  citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  State  for  which  he  shall  be  chosen.— 
The  Constitution  of  the  United  States,  Article  I,  Sect,  iii,  clause  3 

'.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods,  p.  15. 


THE  ORGANIZATION  OF  CONGRESS  299 


has-  contained  statesmen  or  party  leaders  who,  because  of  their 
age,  experience,  or  ability,  have  made  that  body  the  more 
important  branch  of  Congress. 

The  same  disabilities  as  to  holding  office,  or  the  acceptance  Disabilities 
of  an  office  the  emoluments  of  which  have  been  increased  during 
the  term  for  which  they  are  elected,  apply  to  both  senators  and 
representatives  alike.  And  the  disabilities  created  by  the  Four- 
teenth Amendment  for  participation  in  insurrection  or  rebellion 
were  at  one  time  enforced  against  senators  as  well  as  representa- 
tives. Like  the  House,  the  Senate  is  the  judge  of  the  elections, 
returns,  and  qualifications  of  its  members.  In  the  House,  it  has 
been  shown  that  the  decisions  of  contested  election  cases  are 
too  often  regarded  as  political  questions ;  but  while  partisan  pol- 
itics have  not  been  absent  in  the  Senate,  the  Senate  Jias  been 
far  more  consistent  and  has  maintained,  if  not  a  judicial  impar- 
tialityT^tleast  a  respect  jot  legal  procedure  and  precedent.  As 
in  the  House,  the  question  has  been  raisedTwhetlTeTthe  Senate,  in 
determining  the  qualifications  of  its  members,  could  apply  tests 
other  than  those  prescribed  by  the  Constitution.  The  answer  to 
this  question  in  the  Senate  has  been  directly  opposite  to  that  of 
the  House.  The  leading  case  was  that  of  Senator  Smoot  from  case  of  sena- 
Utah.  As  in  the  case  of  Representative  Roberts  in  the  House, 
charges  were  brought  against  Senator  Smoot  that  he  was  a  sup- 
porter of  the  Mormon  Church,  although  he  was  not  personally 
a  polygamist.  But  unlike  the  House,  which  refused  a  seat  to 
Mr.  Roberts,  the  Senate  accepted  Mr.  Smoot.  Both  Republicans 
and  Democrats  alike  agreed  that,  although  the  Senate  might  not 
add  to  the  qualifications  prescribed  by  the  Constitution,  yet  by 
a  two-thirds  vote  a  senator  might  be  expelled.  The  resolution  for 
expulsion  was  defeated  by  a  nonpartisan  vote  of  27  to  43,  and 
that  for  exclusion  by  a  vote  of  28  to  42. 1 

But  while  displaying  a  measurable  lack  of  partisanship  in  the  contested 
decision  of  election  contests,  the  Senate  has  not  been  free  from 
political  or  party  bias  in  its  investigations  of  charges  of  bribery 
or  corruption  on  the  part  of  its  members.  There  have  been 
twelve  such  investigations  on  the  part  of  committees.  Only  one 
senator  —  Senator  Lorimer  of  Illinois  —  has  been,  expelled,  but 

1  Congressional  Record,  February  20,  1907,  Vol.  XLI,  Part  IV,  p.  3429. 


Terms  of 
senators 


Effect  of  six- 
year  term 


300    THE  GOVERNMENT  OF  THE  UNITED  STATES 

t 

two  others  have  resigned  during  the  investigations.  The  prin- 
ciples which  the  Senate  adopted  in  1879  make  conviction  diffi- 
cult, for  it  must  be  proved  by  legal  evidence  (i)  that  the  claimant 
was  personally  guil^f^c^n^^practices,  or  (2)  that  a  sufficient 
number  of  votes  were  corruptly  changed  to  affect  the  result,  or 
(3)  that  corruption  took  place  with  his  sanction.  Thus,  in  1912 
Senator  Stephenson  of  Wisconsin,  who  acknowledged  in  his 
sworn  statement  that  he  had  spent  over  $107,000  in  his  primary 
campaign,  was  allowed  to  retain  his  seat  on  the  ground  that  he 
neitherjvasj^raQDally  guihyjof^ormptionjlOLhad  sanctioned  it. 
In  the  same  year,  however,  Senator  Lorimer  of  Illinois  was 
unseated  on  the  ground  that  corrupt  methods  and  practices  were 
employed  in  his  election.  Although  freely  charged  in  the  debate, 
the  official  resolution  did  not  charge  complicity  on  his  part  in  the 
corrupt  methods.1 

The.  terms  of  senators  are  fixed  for  six  years,  and  by  the  Con- 
stitution the  original  members  of  the  Senate  were  divided  into 
three  classes  whose  terms  should  expire  at  the  end  of  the  second, 
fourth,  and  sixth  years  so  that  one  third  of  the  Senate  should 
be  elected  every  second  year.2  Care  was  taken  that  the  two 
senators  from  a  state  were  not  placed  in  the  same  class.  Senators 
from  newly  admitted  states  are  assigned  by  lot  to  the  long  or 
short  terms. 

The  effect  of  this  provision  is  far-reaching.  In  the  first  place, 
the  individual  senators,  feeling  themselves  secure  in  their  positions 
for  at  least  six  years,  are  less  fearful  of  the  immediate  disapproval 
of  popular  opinion  than  are  the  representatives,  whose  terms  are 
for  but  two  years.  During  the  six  years  of  a  senatorial  term 
changes  may  take  place  ;  new  local  politicians  may  arise  who  may 
need  conciliation  quite  as  much  as  their  predecessors  and  whose 
power  to  reward  or  punish  is  long  delayed,  The  senator,  unlike 
the  representative,  who  under  normal  conditions  has  served  more 
than  one  half  of  his  term  before  he  takes  his  seat,  is  not  imme- 
diately concerned  with  jiis  reelection.  Time  and  opportunity  aie 
giv£|i_him  to  show^Jlk-bility  and,  whaTls^oriTrnos7  equal 


importance,  to  strengthen  _his  position  with  the  local  leaders. 

1  American  Year  Book  (1912),  p.  46. 

2  The  Constitution  of  the  United  States,  Article  I,  Sect,  iii,  clauses  i,  2. 


THE  ORGANIZATION  OF  CONGRESS  301 

Senators,  therefore,  are  judged  by  their  record  as  legislators  to 
a  greater  degree  than  representatives,  the  majority  of  whom 
scarcely  have  an  opportunity  to  show  their  capacity. 

The  constitutional  provision,  moreover,  makes  the  Senate  a 
continuous  body.  Every  two  years  a  new  House  of  Representa-  body1™ 
tives  is  elected,  a  large  part  of  whose  members  are  serving  their 
first  terms.  With  the  Senate,  every  second  year  only  one  third 
of  the  senators  may  change,  while  actually  considerably  less  than 
that  proportion  are  new  members.  In  consequence  the  sense  of 
continuity  as  an  assembly  has  a  marked  effect  upon  the  attitude 
of  the  Senate  both  in  its  internal  organization  and  in  its  relation 
with  the  House  and  with  the  president.  Continuity  and  lon^terms 
give  opportunity^  to  develop  rules,  precedents,  and  traditions,  and, 
what  is  even  more  important^ea^eigT'wnose  influence  is  based 
quite  as  much  upon  their  ability  and  good  judgment  as  upon 
the  ephemeral  success  in  debate  or  parliamentary  tactics.  In  rela- 
tion to  the  other  branches  of  the  government  the  six-year  term 
and  continuity  of  organization  enable  each  senator  to  watch  the 
changes  in  three  congressional  elections  and  one  presidential 
election  ;  while  the  rule  which  permits  the  election  of  only  one 
third  of  the  Senate  every  second  year  makes  it  possible  for  the 
Senate  to  be  of  a  different  political  party  from  either  the  House 
or  the  president.  The  Senate  is  thus  in  a  stronger  position  and 
has  at  times  been  able  to  thwart  with  impunity  both  of  the  other 
branches  of  the  government. 

Senators  receive  the  same  salaries  and  traveling  expenses  and  privileges  of 
have  the  same  privileges  of  exemption  from  arrest  and  freedom 
of  speech  as  do  the  members  of  the  House.  Their  perquisites, 
however,  are  a  little  greater,  for  since  practically  every  senator 
is  chairman  of  some  committee,  furnished  with  at  least  a  clerk, 
they  obtain  some  extra  clerical  service.  Their  franking  privileges 
and  the  privilege  to  print  are  the  same  ;  also  the  parliamentary 
privilege  to  demand  a  roll  call  and  the  entry  of  the  names  and 
votes  of  those  present.  The  small  size  of  the  Senate  renders  this  of 
less  use  as  a  means  of  delay  than  it  is  in  the  House  ;  but  it  is  some- 
times resorted  to  in  order  to  give  a  speaker  engaged  in  a  filibuster 
an  opportunity  to  refresh  himself.  It  is,  however,  often  used  to 
force  senators  to  make  a  record  which  may  be  used  for  partisan 


The  vice 


officer 


The  Senate 
represents 
equality  of 
the  states 


302    THE  GOVERNMENT  OF  THE  UNITED  STATES 

purposes.  The  Senate  has  the  same  parliamentary  duties  and  pow- 
ers as  the  House  with  respect  to  maintaining  a  quorum,  keeping 
order,  disciplining  its  members,  and  publishing  its  journal.  It  has 
the  special  duty  of  trying  impeachments  brought  by  the  House. 

The  Senate,  like  the  House,  elects  its  inferior  officials,  —  its 
secretary,  sergeant  at  arms,  and  clerks,  —  but,  unlike  the  House, 
its  presiding  officerjs  not  one  ofjtsjnembers.  By*tHe  ConsHtu- 
tion  tfie  vice  president  presides  l)v"er  the  Senate  except  in  the 
case  of  the  trnpeachmenToT  Hie  jjiisidl!lil.  Allliucrgli  aTlTpre- 
siding  officer  tKe~"vice  president  is  supposed  to  be  unpartisan, 
thus  holding  a  different  position  from  that  of  the  Speaker  of  the 
House,  his  decisions  have  sometimes  been  known  to  be  dictated 
by  party  policy.1  Moreover,  appeals  from  his  decisions  are  fre- 
quent, and  in  the  decision  of  these  appeals  the  party  in  majority 
usually  obtains  its  contention.  In  the  absence  of  the  vice  presi- 
dent the  Senate  elects  one  of  its  members  president  pro  tempore. 
In  practice  it  is  customary  for  the  vice  president  to  absent  him- 
self early  in  his  term  so  that  this  officer  may  be  chosen. 

As  the  House  of  Representatives  represents  the  states  in  pro- 
portion to  population  and  size,  the  Senatej^resents  the  equality 
of  the  states  composing  the  union.2  As  has  been  shown,  apart 
from  all  precedents  or  examples,  the  bicameral  organization  of 
Congress  was  necessary  in  order  to  carry  out  the  compromises 
between  the  large  and  small  states.  If  numbers  were  the  sole 
measure  of  the  influence  of  a.  state  in  one  chamber,  another 
chamber  must  be  created  to  recognize  the  equality  of  all  the 
states  ;  and  small  states  were  thus  reassured  by  the  apportion- 
ment of  two  senators  to  each  state.  Even  more,  to  this  provi- 
sion the  amending  process  cannot  apply,  for  no  state,  without  its 
consent,  can  be  deprived  of  its  equal  suffrage  in  the  Senate  — 
a  consent  scarcely  likely  to  be  given. 

The  system  of  apportionment  has  always  produced  most  strik- 
ing inequalities  in  the  representation  of  population.  Even  the 

1  See  the  case  of  Vice  President  Sherman,  below,  p.  326;  Congressional 
Record,  March  4,  1911,  p.  4285. 

2  The  Senate  of  the  United  States  shall  be  composed  of  two  Senators  from 
each  State.  —  The  Constitution  of  the  United  States,  Article  I,  Sect,  iii,  clause  i 

No  State,  without  its  consent,  shall  be  deprived  of  its  equal  suffrage  in  the 
Senate.  —  Ibid.  Article  V,  Sect,  i 


THE  ORGANIZATION  OF  CONGRESS  303 

first  census  of  1  790  showed  that  if  the  senators  were  apportioned  criticism  of 
according  to  population  at  the  ratio  of  two  to  Delaware's  popu-  sentatio^tn 
lation  of  29,548,  Virginia  with  a  population  of  747,610  should  thesenate 
receive  fifty.  These  inequalities  have  increased  with  time  and 
with  the  admission  of  new  states  and  the  massing  of  the  popula- 
tion in  cities  in  certain  states.  Thus,  if  New  York  had  the  same 
proportional  representation  in  the  Senate  as  Nevada  was  entitled 
to  in  1910,  she  would  be  entitled  to  two  hundred  and  twenty 
senators.  Even  more  is  involved  than  a  lack  of  proportional  repre- 
sentation. It  is  possible  to  select  sixteen  states,  having  together 
a  population  of  about  eight  millions,  or  less  than  the  population 
of  New  York.  The  thirty-two  votes  cast  by  the  senators  from 
these  states  would  furnish  the  one  third  of  the  votes  necessary  to 
defeat  some  important  treaty.  In  other  words,  the  votes  of  the 
senators  standing  for  eight  millions  could  defeat  the  desires  of 
the  senators  representing  eighty-four  millions.  Or,  again,  states 
having  about  one  fifth  of  the  population  choose  half  of  the 
entire  Senate,  while  more  than  four  fifths  of  the  population  are 
represented  by  a  probable  minority  of  the  Senate.1 

In  answer  to  this  criticism  it  may  be  pointed  out  that  in  the  Answer  to 
first  place  it  is  largely  theoretical  and  hardly  practical  ;  for  never 
in  the  history  of  the  country  has  there  been  a  division  between 
the  states  on  the  lines  of  large  and  small  states.  The  small 
states  have  never  acted  in  harmony,  nor  is  it  likely  that  they 
ever  will.  They  are  too  widely  separated,  and  their  interests 
and  political  traditions  are  too  diverse  to  permit  such  a  union.  It 
might  be  possible,  however,  for  the  senators  from  certain  sections 
containing  both  large  and  small  states  to  combine,  but  in  such  a 
combination  the  population  would  necessarily  be  represented  to 
a  more  equitable  degree  than  in  the  theoretical  illustration. 

Again,  as  President  Wilson  points  out,  the  Senate  represents 
something  besides  mere  numbers.    It  represents  \     country  Jn 


It  is  of  the  utmost  importance  that  its  parts  as  well  as  its  people  President 
should  be  represented  ;  and  there  can  be  no  doubt  in  the  mind  of  any-  ^(^senat 
one  who  really  sees  the  Senate  of  the  United  States  as  it  is  that  it 

1  P.  S.  Reinsch,  Readings  on  American  Federal  Government,  pp.  135-146,  has 
similar  statements  made  by  ex-Governor  McCall  based  upon  the  census  of  1900. 


304    THE  GOVERNMENT  OF  THE  UNITED  STATES 

represents  the  country  as  distinct  from  the  accumulated  populations  of 
the  country,  much  more  freely  and  more  truly  than' does  the  House  of 
Representatives.  .  .  .'  The  House  of  Representatives  tends  more  and 
more,  with  the  concentration  of  population  in  certain  regions,  to  repre- 
sent particular  interests  and  points  of  view,  to  be  less  catholic  and 
more  specialized  in  its  view  of  national  affairs.  It  represents  chiefly 
•  the  East  and  North.  The  Senate  is  its  indispensable  offset  and  speaks 
always  in  its  makeup  of  the  size,  the  variety,  the  heterogeneity,  the 
range  and  breadth  of  the  country,  which  no  community  or  group  of 
communities  can  adequately  represent.  It  cannot  be  represented  by 
one  sample  or  by  a  few  samples ;  it  can  be  represented  only  by  many, 
—  as  many  as  it  has  parts.1 

General  re-  •  From  this  point  of  view  the  equal  apportionment  of  the 
equality  of  senators  is  not  only  not  unfortunate  but  a  triumph  of  political 
[nPtheesenaten  sagacity.  Certainly  the  career  of  the  Senate  has  justified  such 
praise.  At  times,  particularly  just  before  the  Civil  War,  it  seemed 
to  oppose  measures  on  purely  sectional  interests,  at  other  times 
it  has  seemed  to  be  the  tool  of  economic  or  financial  groups, 
but  generally  it  has  so  directed  its  action  that  its  policy  J^is 
been  more  truly  national  than  that  of  the  House  of  Representa- 
frves,  where  numbers  have  lull  weight.  Such  action  is  bound  to 
be  in  the  nature  of  a  compromise,  and  as  such  may  not  be 
fully  acceptable  to  any  particular  section,  yet  because  it  represents 
the  result  of  a  national  compromise  in  which  all  the  regions  of 
the  rnnntry  arp  pqipally^  represented,  it  truly  reflectTtRemdonal 

characteristics  of  the  country.  '  *"**" • 

Election  of  In  th^conventiolT uf  1787  there  was  great  diversity  of  opinion 
concerning  the  apportionment  and  method  of  choice  of  repre- 
sentatives, but  only  slight  opposition  to  the  method  prescribed 
for  the  choice  of  senators.2  Four  plans  were  offered  :  (i)  election 
by  state  legislatures,  (2)  election  by  the  lower  House  of  Congress, 
(3)  appointment  by  the  president,  (4)  election  by  the  people. 

1  The  Constitutional  Government  in  the  United  States,  pp.  116,  117. 

2  The  Senators  shall  be  "chosen  by  the  legislature  [of  each  State]."  — The 
Constitution  of  the  United  States,  Article  I,  Sect,  iii,  clause  i 

The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Repre- 
sentatives shall  be  prescribed  in  each  State  by  the  legislature  thereof ;  but  the 
Congress  may  at  any  time,  by  law,  make  or  alter  such  regulations,  except  as  to 
the  places  of  choosing  Senators.  —  Ibid.  Article  I,  Sect,  iv,  clause  i 


THE  ORGANIZATION  OF  CONGRESS  305 

These  last  two  proposals  received  scant  support,  Gouverneur 
Morris  being  the  only  supporter  of  the  appointment  plan,  and 
James  Wilson  voting  alone  for  election  by  the  people.1  In  fact, 
Wilson's  scheme  was  entirely  out  of  harmony  with  the  temper 
of  the  convention.  The  demand  was  not  how  to  get  more  popular 
control,  democracy,  —  or,  as  it  appeared  to  most  of  the  convention, 
mob  rule,  —  but  hQis^opreveJntthis.  As  Roger  Sherman  said,  the 
endeavor  was  "that  the  people  immediately  should  have  as  little 
to  do  as  may  be  about  the  government."  The  plan  for  an  election 
of  the  upper  chamber  by  the  lower  was  defeated  by  a  vote  of  seven 
states  to  three,2  and  it  was  provided  that  the  legislatures  of  the 
states  should  be  charged  with  the  function  of  electing  the  sena- 
tors. The  advantages  hoped  for  were  four  :  (i)  it  was  asserted  that 
such  election  would  produce  a  higher  grade  of  senators  ;  (2)  it 
would  give  more  effective  representation,  and  the  senator  elected 
by  the  whole  legislature  would  feel  himself  less  the  representative 
of  a  class  or  factional  interest  than  of  the  entire  state  ;  (3)  such 
indirect  election,  it  was  hoped,  would  serve  to  check  any  evils 
which  might  arise  from  a  House  of  Representatives  elected 
directly  by  the  people ;  (4)  finally,  the  election  of  senators  to 
the  national  government  would  bring  that  government  and  the 
state  government  into  contact,  and  each  would  have  an  interest 
in  supporting  the  other. 

Although  Congress  was  given  power  to  make  regulations 
concerning  the  time  and  manner  of  the  elections  of  senators,  —  - 
but  not  concerning  the  place,  for  that  would  involve  determining  of  senators 
the  meeting-place  of  the  state  legislature,  —  no  law  was  passed 
under  this  permission  until  1866.  By  this  act  each  House  of 
the  state  legislature  voted  separately,  and  if  the  same  candidate 
should  receive  the  majority  in  both  Houses,  he  should  be  declared 
elected ;  but  if  not,  the  Houses  should  meet  in  joint  session  at 
twelve  o'clock  each  day  and  continue  to  ballot  until  some 
candidate  should  receive  a  majority  of  the  votes.  The  operation 
of  this  law  can  hardly  be  said  to  have  been  satisfactory.  Dead- 
locks, bribery,  and  corruption  of  the  legislature,  vacancies  in  the 

1  G.  H.  Haynes,  The  Election  of  Senators,  chap.  i.    Professor  Haynes's  book 
is  the  authority  on  this  subject  and  from  it  is  taken  the  material  for  this  section. 

2  Massachusetts,  South  Carolina,  and  Virginia  being  in  the  minority. 


Demand  for 
popular  elec- 
tion of  sen- 
ators 


Evasion  of 
the  constitu- 
tional method 
of  election  of 
senators 


The  Seven- 
teenth 
Amendment 


306    THE  GOVERNMENT  OF  THE  UNITED  STATES 

representation  of  the  states,  confusion  of  national  and_state 
business,  and  arTmterference  with [JEe^g^ma^^^^s^oTthQ 
state  legislatures  have~^cn-sa^^oi^\ej^^^^^  results.1 
Althoughtheie1  have  been  Kmne^agrant  cases  of  misrepresenta- 
tion and  a  few  cases  of  notoriously  bad  senators,  the  system  has 
produced  a  dignified,  able,  and  efficient  body,  which  has  of  ten  been 
wiser  and  more  farseeing  than  the  House  of  Representatives. 

In  1826,  forty  years  before  the  passage  of  the  law  regulating  the 
election  of  senators,  the  agitation  for  the  direct  election  of  senators 
was  begun.  Not  until  the  close  of  the  Civil  War  did  the  agitation 
become  marked,  nor  did  it  seriously  affect  Congress  until  1893, 
but  in  the  next  nine  years  five  resolutions  passed  the  House  in 
every  Congress,  except  one,  asking  for  a  constitutional  amend- 
ment providing  for  the  direct  election  of  senators.  Outside  of 
Congress  the  national  parties  were  taking  up  the  question,  and  in 
1892  and  1896  it  was  favored  by  the  People's  party  and  in  1900 
by  the  Democratic  party;  while  in  1908,  although  not  in  the 
Republican  platform,  it  received  the  indorsement  of  Mr.  Taft.2 

Various  states,  however,  refused  to  wait  for  such  action  and, 
by  means  of  the  direct  primary,  nominated  candidates  for  the 
Senate  whom  it  was  expected  the  legislature  would  elect.  This 
was  only  indicative  of  popular  opinion  within  the  party,  and  at 
best  could  only  be  morally  binding  upon  the  legislature.  Oregon 
and  Nebraska,  however,  went  further  and,  after  the  primaries 
for  the  senatorial  candidates,  voted  on  these  at  the  regular 
state  elections,  the  successful  candidate  being  known  as  the 
"  People's  Choice."  Candidates  for  state  legislatures  were  given 
an  opportunity  on  the  official  ballot  to  indicate  whether  they 
would  support  the  People's  Choice,  irrespective  of  party.3  As 
a  result,  in  1908  the  People's  Choice,  Mr.  Chamberlain,  a 
Democrat,  was  elected  by  a  Republican  legislature. 

The  presence  of  senators,  elected  iri  a  semi-popular  manner, 
together  with  the  increased  popular  demand,  finally  forced  the 
Senate  to  action,  and  in  1912  it  adopted  an  amendment  to 

1  G.  H.  Haynes,  The  Election  of  Senators,  chap.  iii. 

2  Ibid.  chap,  v,  gives  an  account  of  the  movement  for  popular  election. 

.  A.  Beard,  Readings  in  American  Government  and  Politics  (rev.  ed.), 
p.  25,  gives  an  extract  from  the  law  of  Oregon  (1904)  concerning  the  method 
of  election. 


THE  ORGANIZATION  OF  CONGRESS  307 

the  Constitution,  which  was  submitted  to  the  states  and  declared 
in  force  May  31,  1913.  By  this  amendment  senators  are  to  be 
elected  by  the  people  of  the  states  having  the  qualifications  for 
electors  of  the  most  numerous  branch  of  the  state  legislatures. 

The    theoretical   arguments    for    and    against    this    plan    of  Effects  of 
popular  election  are  impartially  presented  by  Professor  Haynes,  tSuI?61 
but  it  is  yet  too  early  to  determine  the  practical  working  of  the  senators 
system.    It  ^will.  without^doubt,  produce^a  marked   change   in 
the  type_of_^enators.    Under  the  new  system  they  must,  in  most  (i)  on  the 
states,  be  willing  to  engage  in  the  %  preliminary  contest  of  the  S* 
direct  primary  for  the  party  nomination,  and  later  in  the  contest 
for  election.    Whether  this  will  produce  individual  senators  of  a 
higher  type  or  not  is  uncertain,  but  it  is  clear  that  they  must 
bejible  to  gain  the  popular  support  of  the_whple  state  electorate. 
They  must  be  good  camgaigners  even  if  they  are  deficient  as 
statesmen.    Whether  this  will  produce  a  Senate  of  more  radical 
tendencies   cannot   accurately   be   foreseen,   for   the   length   of 
terms  may  in  a  measure  counterbalance  the  influence  of  popular 
election,  but  the  Senate  will  doubtless  be  more  responsive  to 
public  opinion  as  expressed  at  the  polls.    It  is  to  be  feared 
however,  that  popular  direct  election  willJiay^_jL_tendency_ to 
reducejhe jiumber^  of^jreelectionsTand  thus^depriyej:he  Senate 
of  the  advantage  of  ex^erienceoMeaders. 

The  effect  upon  state  legislatures  cannot  but  be  good.    The  (»>  on  state 
members  will  be  chosen  on  the  basis  of  local  state_issuesA  rather  legisl< 
than  for  the  purpose  of  electing  a  senator.1    The  time  of  the 
legislature  will  be  left  free  fon^tate  business,  and  no  deadlock 
of  one  hundred  and  fourteen  days,  such  as  occurred  in  Delaware, 
will  be  possible.2   Again  the  scandalous^ use  of  money  to  influence 
the  votes  of  the  legislature  will  cease,  although  some  critics  fear 
this  corruption  will  be  spread  throughout  the  state  electorate. 

Vacancies  are  to  be  filled  through  new  elections  held  upon  vacancies 
the  calFol  the  state  governors,  but  the  legislature  may  direct 
the  governor  to  make  temporary  appointments  until  the  people 
fill  the  vacancy  as  the  legislature  shall  direct. 

1  In  1912  the  Republican  State  Committee  in  Massachusetts  unofficially  con- 
ceded the  impossibility  of  electing  a  Republican  governor,  but  concentrated 
their  efforts  upon  the  attempt  to  secure  a  majority  in  both  Houses  of  the 
General  Court.  2  G.  H.  Haynes,  The  Election  of  Senators,  p.  38. 


CHAPTER  XII 


Executive 
leadership  in 
England  and 
Europe 


Separation  of 
powers  in  the 
United  States 
prevents  the 
establish- 
ment of  the 
parliamentary 
system 


CONGRESS  AT  WORK 
ABSENCE  OF  EXECUTIVE  LEADERSHIP  IN  CONGRESS 

In  most  countries  leadership  in  legislative  affairs  is  given  to 
the  executive.  In  those  countries  where  the  parliamentary  system 
is  established,  the  cabinet  —  heads  of  executive  departments  - 
is  the  directing  force.  In  England  and  her  self-governing 
dominions  and  in  France  the  cabinet,  indirectly  chosen  by  the 
legislature,  controls,  as  long  as  it  retains  office,  the  policy  and 
procedure  of  the  legislature.  In  Switzerland  the  executive  is 
more  independent  of  and  consequently  has  less  control  over  the 
legislature,  but  opportunities  are  given  for  the  executive  to 
explain  proposed  measures  and  to  influence  and  facilitate  their 
passage.  The  same  was  true  in  Germany  under  the  imperial 
constitution. 

In  the  United  States  the  principle  of  separation  of  depart- 
ments is  carried  to  the  extreme  limit,  and  few  opportunities  are 
provided  by  the  Constitution  for  executive  leadership.  The 
president,  it  is  true,  is  directed  to  inform  Congress  concerning 
the  state  of  the  Union,  and  may  recommend  the  passage  of 
measures.  He  may,  moreover,  summon  Congress  in  special 
sessions  upon  extraordinary  occasions,  but  he  has  not  the  power 
of  dissolving  Congress  and,  by  means  of  a  special  election,  of 
appealing  for  popular  approval  of  his  measures.  Unlike  the 
chancellor  of  the  former  German  Empire  or  the  ministers  of 
France  and  England,  he  has  no  seat  on  the  floor  of  either  House, 
no  opportunity  to  take  part  in  debate,  and  his  public  part  in 
legislation  is  confined  to  the  sending  of  printed  messages  or  the 
reading  of  addresses,  together  with  his  constitutional  right 
to  veto. 

The  president,  as  chief  executive,  is  not  only  limited  in  his 
legislative  influence  but  the  possibility  of  developing  a  cabinet 

308 


CONGRESS  AT  WORK  309 


system  like  that  of  France  or  England  is  precluded  by  the  Con-  Limitations 
stitution.  " .  .  .  no  person  holding  any  office  under  the  United  ?"aJJS£plve 
States  shall  be  a  member  of  either  House  during  his  continuance 
in  office,"  J  —  a  provision  based  upon  the  English  Act  of  Settle- 
ment still  unrepealed,  but  interpreted  in  England  to  mean  that 
every  member  of  the  cabinet  must  be  a  member  of  one  of  the 
Houses  of  Parliament.2  Thus  the  president's  cabinet  is  the  direct 
antithesis  of  the  foreign  cabinets  in  that  it  is  given  no  legislative 
power  and  few  avenues  of  cooperation  with  Congress.  It  is  true 
that  the  Secretary  of  the  Treasury  reports  directly  to  Congress, 
and  that  the  reports  of  the  other  officers  are  transmitted  by  the 
president  to  Congress,  but  these  reports  are  referred  to  legislative 
committees,  who  may  ignore  the  suggestions  or  propose  measures 
quite  different.  The  secretaries,  like  the  president,  have  no 
seats  in  either  House  and,  unlike  the  president,  they  cannot 
address  Congress. 

Nevertheless,  it  would  be  a  serious  error  to  assume  that  the  Actual  influ- 
executive  is  without  influence.  A  resolute  president,  as  party  president16 
leader,3  can  usually  control  the  majority  of  his  party  in  Congress.  as  leader 
Some  of  his  power  comes  from  his  position  and  his  appeal  to 
popular  imagination  ;  much,  however,  of  the  compelling  force 
behind  his  influence  over  Congress  comes  from  the  provisions 
of  the  Constitution,  which  vest  the  appointing  power  and  the 
power  of  veto  in  the  hands  of  the  president.  It  is  true  that  the 
veto  is  seldom  used,  for  affairs  are  adjusted  and  a  compromise 
reached  before  such  an  open  split  between  the  president  and  his 
party  is  disclosed.  The  patronage,  however,  is  a  constant  source 
of  presidential  influence  which  even  some  of  the  strongest 
upholders  of  civil-service  reform  have  resorted  to.  Even  in  the 
use  of  patronage  it  may  well  be  doubted  whether  specific  bar- 
gains are  very  frequently  made  and  votes  actually  bought  by 
promises  of  appointments,  although  this  is  sometimes  done.4 
Rather  in  unofficial  ways,  by  interviews  at  the  White  House,  let- 
ters and  conferences,  communications  through  a  secretary,  and, 

1  The  Constitution  of  the  United  States,  Article  I,  Sect,  vi,  clause  2. 

2  One  of  the  innovations  introduced  by  the  war  has  been  the  appointment 
of  nonmembers  as  ministers.  8  See  pp.  168-174. 

4  See  C.  A.  Beard,  American  Government  and  Politics,  pp.  208-209,  for  use 
of  patronage  as  a  means  of  executive  influence. 


3io    THE  GOVERNMENT  OF  THE  UNITED  STATES 

finally,  — an  innovation  introduced  by  President  Wilson,  - 
through  interviews  held  in  person  at  the  president's  room  in 
the  Capitol,  the  president's  influence  is  exerted  in  such  un- 
mistakable ways  that  few  strong  party  leaders  would  dare 
to  resist.  To  sum  up,  it  would  be  fair  to  say  that  executive 
influence  is  exerted  not  in  but  outside  Congress ;  that,  as  the 
president  and  his  cabinet  are  precluded  from  working  openly 
on  the  floor,  they  must  resort  to  private,  unofficial  means  to 
attain  their  ends.  So  powerful  is  their  influence,  however,  not 
always  with  Congress  but  throughout  the  country,  that  their 
policies  are  usually  adopted.1 

PARTY  ORGANIZATIONS 

Leadership  in  If  there  is  no  open  executive  leadership  in  Congress,  legisla- 
tive  leadership  must  be  exercised,  for  leadership  there  must  be. 
™s  leadership  is  found  in  the  organization  of  Congress  into 
congress  parties.  Although  the  Constitution  gives  to  Congress  certain 
powers,  it  is  not  Congress  or  either  House  which  actually 
performs  these  functions,  but  the  party  having  the  majority. 
Thus  contested  elections  are  referred  to  partisan  committees 
and  generally  decided  by  partisan  votes.  The  House  nominally 
elects  a  Speaker,  but  actually  merely  ratifies  the  choice  made 
by  the  majority  members  acting  in  secret.  All  legislation  is 
prepared  by  committees  on  which  the  party  in  majorky  has 
the  deciding  voice,  and  is  generally  adopted  by  the  party  vote 
in  each  House. 

The  two-  Political  issues  in  the  United  States  have  favored  the  creation 

has  resufted*  of  the  two-party  system.    While  it  is  true  that  there  have  been 

troi  by°the      third  parties  formed  which  polled  large  popular  votes,  they  have 

majority         seldom  secured  a  large  representation  in  Congress.    Moreover, 

the  majority  party  in  Congress  has  generally  obtained  such  a 

decisive7"  majority  that  it  could  afford  to  ignore  the  combinations 

of  minority  parties.    Only  four  times  in  our  history  have  minority 

parties  held  the  balance  of  power,  but  in  every  case,  except 

1  President  Wilson's  smiling  assumption  in  one  of  his  addresses  that  he  was 
to  cooperate  with  Congress  greatly  shocked  many  of  the  strong  congressional 
leaders. 


CONGRESS  AT  WORK  311 

possibly  in  1917,  the  House  has  been   organized  by  and  the 
Speaker  chosen  from  the  party  having  the  plurality,1 

The  parties  in  Congress  are  the  same^s  the  national  parties  HOW  party 
which  nominate  the  candidates  for  president.  In  fact,  at  times  !£S^iS£?n 
'members  of  the  Senate  have  dominated  at  least  one  of  the  ence 
national  organizations.  The  coritrol  of  the  national  parties  over 
the  members  is  exercised  through  both  the  national" and  state 
organizations.  The  national  committee  of  each  party  may  devote 
some  of  its  energy  aricT  some  of  Ss"  funds  but  more  of  its  influ- 
ence to  bring  about  the  election  of  senators  and  Congressmen  in 
good  favor  with  the  party.  The  congressional  committees  work 
primarily  to  obtain  as  large  a  party  representation  as  possible  in 
each  House,  so  that  practically  every  member  of  both  Houses  is 
bound  by  ties  of  party  loyalty,  if  not  by  actual  obligation,  to  the 
organization  of  his  party.  The  extent  to  which  this  obligation  is 
created  by  aid  and  possibly  by  financial  assistance  is  hard  to 
measure.  It  is  unlikely  that  open  pressure  is  often  exerted,  for 
the  organization  would  hardly  aid  a  man  whose  party  loyalty  was 
open  to  question.  But  since  the  actual  aid  given  by  national 
party  organizations  is  extended  at  most  to  only  a  small  propor- 
tion of  the  members  elected,  appeals  to  party  loyalty  and  oppor- 
tunities for  activity  are  more  likely  to  be  the  means  of  maintaining  » 
the  influence  of  the  organization.  More  aid  may  be  given  to  the 
members  by  their  local  state  organizations  and  the  obligation  may 
be  stronger  there,  but,  as  has-  been  pointed  out,  the  various  state 
committees  are  all  more  or  less  under  the  control  of  the  national 
committee,  particularly  in  the  year  of  a  presidential  campaign. 

ORGANS  OF  PARTY  ORGANIZATION  AND  LEADERSHIP 

Since  IQIJ  the  chief  organ  of  party  control  in  Congress  has  Theiegisia- 
been  the  legislative  caucus.     The  use  of  a  preliminary  secret 
party  meeting  to  determine  the  attitude  of  a  party  upon  measures 

1  The  65th  Congress,  1917,  was  an  exception  to  this.  In  the  House  the  Demo- 
crats and  Republicans  were  almost  equal  and  the  balance  of  power  was  held 
by  independent  members.  The  3ist  Congress  had  112  Democrats,  109  Whigs, 
9  Free  Soilers ;  the  35th  Congress,  118  Democrats,  n  Anti-Lecompton  Demo- 
crats, 15  Americans,  92  Republicans;  the  36th  Congress,  92  Democrats,  7  Anti- 
Lecompton  Democrats,  24  Americans,  114  Republicans;  the  65th  Congress,. 
215  Democrats,  211  Republicans,  5  Independents. 


The  modern 

legislative 

caucus 


Description 
and  influence 
of  the  caucus 


3I2    THE  GOVERNMENT  QF  THE  UNITED  STATES 

is  not  new.  As  early  as  1794  the  Federalist  party  utilized  it,  and 
in  1799  Jefferson,  in  a  letter  to  Madison,  described  the  action 
resulting  from  a  caucus  upon  the  Alien  and  Sedition  bills  as 
follows : 

Yesterday  witnessed  a  scandalous  scene  in  the  H.  of  R.  It  was  the 
day  for  taking  up  the  report  of  their  committee  against  the  Alien  and 
Sedition  Laws,  etc.  They  held  a  caucus  and  determined  that  not  a 
word  should  be  spoken  on  their  side,  in  answer  to  anything  which 
should  be  said  on  the  other.  Gallatin  took  up  the  Alien,  and  Nicholas 
the  Sedition  law ;  but  after  a  little  while  of  common  silence,  they  began 
to  enter  into  loud  conversations,  laugh,  cough,  etc.,  so  that  for  the  last 
hour  of  these  gentlemen's  speaking,  they  must  have  the  lungs  of  a 
vendue  master  to  have  been  heard.  Livingston,  however,  attempted 
to  speak.  But  after,  a  few  sentences  the  Speaker  called  him  to  order, 
and  told  him  that  what  he  was  saying  was  not  to  the  question.  It  was 
impossible  to  proceed.1 

During  the  Civil  War  the  caucus  was  at  its  height,  but  its  influ- 
ence declined  until  the  special  session  of  the  62d  Congress  in 
1911,  which  had  advocated  limiting  the  power  of  the  Speaker, 
revived  its  use.  So  successfully  has  it  been  operated  and  so 
pervasive  has  been  its  use  that  Representative  Mann,  the 
leader  of  the  Republicans,  exclaimed  half  in  fun  and  half  in 
desperation,  "The  Democratic  caucus  runs  Congress."2  Since 
1848  the  committees  of  the  Senate  have  been  chosen  by  the 
caucus,  and  since  the  Democratic  control  of  the  Senate  in  1913 
the  caucus  has  been  regularly  used  for  legislative  purposes. 

In  the  House  of  Representatives  the  members  who  have  been 
reflected  assemble  sometime  before  the  close  of  the  session  to 
elect  a  caucus  chairman  and  to  choose  candidates  for  Speaker 
and  floor  leader.3  In  the  Democratic  party  the  floor  leader  is 
also  chairman  of  the  Committee  on  Ways  and  Means,  which 
nominates  the  members  of  the  committees.  Thug  the  caucus  is 
organized,  the  canclidates  are  picked,  and  the  committee  assign- 
ments are  planned  without  consulting  newly  elected  members. 

1  H.  A.  McGill,  on  "  Caucus,"  in  Cyclopedia  of  Government,  p.  232. 

2  Congressional  Record,  May  7,  1917,  65th  Cong.,  ist  Sess.,  p.  200. 

3  The  Republicans  in  February,  1919,  held  a  caucus  to  which  the  newly 
.elected  members  were  invited,  and  to  which  nearly  all  of  them  came  and 

participated. 


CONGRESS  AT  WORK  313 

A  few  days  before  the  session  the  caucus  is  summoned,  and  the 
newly  elected  members  are  invited  to  take  a  part,  although  of 
necessity  a  perfunctory  part,  in  the  proceedings.  The  nomina- 
tions and  decisions  of  the  caucus  are  held  binding  upon  all 
the  members  of  the  party  attending  it.  Refusal  to  attend  and 
opposition  to  its  decisions  meet  with  the  same  discipline  as  is 
given  to  those  who  defy  the  decision  of  the  caucus.  Rule  7  of 
the  Democratic  caucus  thus  defines  the  caucus  and  its  sanction  : 

In  deciding  upon  action  in  the  House  involving  party  policy  or  prin- 
ciple, a  two-thirds  vote  of  those  present  and  voting  at  a  caucus  meeting 
shall  bind  all  members  of  the  caucus  ;  provided,  the  said  two-thirds  vote 
is  a  majority  of  the  full  Democratic  membership  of  the  House,  and  pro- 
vided further,  that  no  member  shall  be  bound  upon  questions  involving 
a  construction  of  the  Constitution  of  the  United  States  or  upon  which 
he  made  contrary  pledges  to  his  constituents  prior  to  his  election 
or  received  contrary  instructions  by  resolution  or  platform  from  his 
nominating  authority.1 

Since  not  many  party  questions  before  the  caucus  involve  the  Power  of 
construction  of  the  Constitution,  and  since  the  local  bodies  nomi-  to^SS 
nating  each  Congressman  keep  fairly  in  touch  with  the  principles  actlon 
and  platform  of  the  national  party,  the  exceptions  allowed  by 
the  rule  amount  to  little.  Nonattendance  at  caucus  is  equivalent 
to  sacrificing  not  only  the  opportunity  to  influence  its  decisions 
and  to  share  in  the  distribution  of  the  committee  assignments 
but  other  opportunities  for  distinction  and  advancement.  Since 
the  same  discipline  is  meted  out  to  a  "  bolter,"  little  is  to  be 
accomplished  by  absence,  but  the  threat  of  an  influential  leader 
to  defy  the  decision  of  the  caucus  may  accomplish  a  great  deal. 
As  a  matter  of  fact  influential  members  have  little  occasion 
to  defy  the  decision  of  the  caucus,  for  they  control  it.  In  the 
preliminary  meeting  the  leaders  of  the  present  Congress  control 
the  organization  of  the  caucus  for  the  coming  Congress.  When 
the  new  members  arrive  they  have  their  choice  of  taking  their 
allotted  places  in  the  completed  organization  or  defying  it. 
Unless  the  party  majority  is  very  slender,  it  makes  little  differ- 
ence to  the  leaders  which  course  is  adopted  by  the  new  member, 

1  W.  H.  Haines,  "  The  Congressional  Caucus  of  To-day,"  in  the  American 
Political  Science  Review,  Vol.  IX,  p.  696. 


The  Com- 
mittee on 
Committees 
the  power 
behind  the 
caucus 


314    THE  GOVERNMENT  OF  THE  UNITED  STATES 

but  cooperation  will  ultimately  be  recognized  and  rewarded,  while 
defiance  will  be  ignored  or  punished. 

More  important,  however,  than  the  final  vote  upon  a  question 
is  the  preliminary  discussion  and  framing  of  the  measure.  As 
will  be  seen,  this  is  the  work  of  the  committees.  Hence  it  is  of 
vital  importance  that  the  organization  of  the  party  should  con- 
trol the  committees.  Since  1911  these  are  nominated  by  the 
caucus  and  elected  by  the  House.1  In  actual  practice  the  Demo- 
cratic caucus  has  implicitly  followed  the  lead  of  the  Committee 
on  Committees  —  that  is,  the  Committee  on  Ways  and  Means. 
Thus  the  control  of  the  party  organization,  and  therefore  the 
legislation  of  the  House,  is  practically  decided  by  the  choice  of 
the  Committee  on  Ways  and  Means  and  largely  by  the  choice 
of  its  chairman.  He  and  his  committee  make  the  other  com- 
mittee assignments,  which  the  caucus  then  approves  and  finally 
elects.  Moreover,  the  caucus  since  1911  has  never  failed  to 
ratify  the  action  of  a  standing  committee.2  When  the  standing 
committee  is  ready  to  report  its  action,  the  caucus  listens, 
discusses  the  measure,  and  ends  by  passing  a  resolution  similar 
to  the  following: 

Be  it  resolved,  by  the  Democratic  caucus,  that  we  endorse  the  bills 
presented  by  the  Ways  and  Means  committee  .  .  .  and  pledge  ourselves 
to  support  said  bills  in  the  House  .- .  .  with  our  votes,  and  to  vote 
against  all  amendments,  except  formal  committee  amendments  to  said 
bills,  and  motions  to  recommit,  changing  their  text  from  the  language 
agreed  upon  in  this  caucus.8 

Thus  the  vote  of  the  House  is  but  a  ratification  of  the  decision 
of  the  caucus,  which  in  turn  is  generally  the  conclusion  arrived 
at  in  committee. 

1  In  1911  the  Republicans  vested  the  nomination  of  the  committees  in  their 
floor  leader,  Mr.  Mann,  and  the  House  ratified  his  choice.    In  1917  this  power 
was  taken  from  the  floor  leader  and  vested  in  a  Committee  on  Committees 
where  it  still  remains. 

2  W.  H.  Raines,   "  The    Congressional    Caucus    of   To-day,"    in   American 
Political  Science  Review,  Vol.  IX,  p.  696. 

8  Caucus  Journal,  April  u,  191 1,  quoted  by  W.  H.  Hahies,  in  American 
Political  Science  Review,  Vol.  IX,  p.  698. 


CONGRESS  AT  WORK  315 

THE  CAUCUS  AND  COMMITTEE  ON  COMMITTEES  IN  THE  SENATE 

From  1 8Q6tpi9i_3_the  Republicans^  controlled  the  Senate. 
Owing  to  their  substantial  agreement  npojijjiejarin7  and  money 
question,  the  party  was  well  united,  and  the  need  for  open 
forceful  party  organization  was  reduced  to  a  minimum.  At  the 
beginning  of  each  session  of  Congress  the  Republican  members 
met  in  a  brief  caucus ;  elected  a  chairman  of  the  caucus  who 
was  given  the  power  to  appoint  the  committees,  and  one  of 
their  number  to  act  as  president  pro  tempore  during  the  absence 
of  the  vice  president.  The  caucus  then  adjourned.1  The  position  influence  of 
of  chairmaj2__of_the_caucus,  because  ^Jiis_power  to  nominate 
the  committees,  was  of  great  importance,  and  since  the  chair- 
man's  nominations  were  not  submitted  to  the  caucus  for 
ratification,  the  trend  of  legislation  during  the  session  was  often 
determined  by  the  action  of  that  single  senator,  unchecked  by 
any  party  discussion  or  formal  vote.  It  is  needless  to  say  that 
this  action  did  not  represent  the  purely  personal  point  of  view 
of  the  chairman,  but  was  guided  by  conferences  with  the 
influential  senators  of  his  party  and  limited  by  the  custom  of 
priority  and  continuous  service  upon  committees.  But  the  point 
to  notice  is  that  these  conferences  were  not  the  result  of  open, 
formal  party  decisions,  but  were  reached  as  the  result  of  private 
personal  agreements. 

When  the  Democrats  gained  control  of  the  Senate  in  1913,  (2)  under  the 
this  procedure  was  changed.  Frequent  and  protracted  caucuses 
were  held,  and  legislation  was  framed  almost  as  much  in  the 
caucus  as  in  committees.  Moreover,  the  Committee  on  Com- 
mittees, instead  of  being  the  appointee  of  the  chairman,  was 
elected  by  the  members  of  the  party.  Thus,  as  in  the  House, 

1  Senator  La  Follette  in  1898  thus  described  his  experience  with  the  caucus  : 
"  I  attended  a  caucus  at  the  beginning  of  this  Congress.  I  happened  to  look 
at  my  watch  when  we  went  into  that  caucus.  We  were  in  session  three  minutes 
and  a  half.  Do  you  know  what  happened  ?  Well,  I  will  tell  you.  A  motion  was 
made  that  somebody  preside.  Then  a  motion  was  made  that  whoever  presided 
should  appoint  a  committee  on  committees ;  and  a  motion  was  then  made  that 
we  adjourn.  (Laughter.)  Nobody  said  anything  but  the  senator  who  made  the 
motion.  Then  and  there  the  fate  of  all  legislation  of  this  session  was  decided." 
—  P.  S.  Reinsch,  Readings  on  American  Federal  Government,  p.  168,  quoting 
from  Congressional  Record,  May  30,  1908 


3l6    THE  GOVERNMENT  OF  THE  UNITED  STATES 

the  emphasis  is  shifting  from  the  more  or  less  unseen  influence 
of  an  unofficial  leader  to  the  formal  action  of  the  party  through 
the  caucus. 

THE  SPEAKER  OF  THE  HOUSE  OF  REPRESENTATIVES 

contrast  For  nearly  a  century  the  Speaker  of  the  House  of  Representa- 

tives  has  ranked'  next  to  the  president  in  American  political 


the  House  of    jjfe     j^e   was   untji    IQII   tne   real   leader   in   legislation   and 

Commons  and 

the  House  of    controller  of  the  House  of  Representatives.    To  exercise  these 
tiles*6'         functions  he  has  utilized  both  his  party  and  personal  influence. 
He  has  from  the  organization  of  the  government  occupied  a 
position   very   different    from   the   Speaker   of    the    House   of 
Commons.    Nor  was  this  difference  the  result  of  accident.    The 
English  Speaker  is  an_jmpartial^presiding  offker.  sinking  his 
\Tand  politic 


prtyand  politkalfeelinffs  in  the  exercise  of  his  .judicial  functions. 
He^is  the  moderator  rather  jjTflmjj^JgafW  r>f  the  Hfwp  pf 
.  Commons.  The  cabinet  rather  than  the  Speakeiijeads^and 
controls  the  politicar^tion  of  the  House  of  Commons.  The 
English  Speaker  witH  great  dignity  and  absolute  impartiality 
enforces  the  rules  of  the  House  and  sees  that,  while  the  minority 
has  legitimate  opportunities  for  debate  and  criticism,  the  will  of 
the  majority  prevails  without  undue  obstruction  or  delay.  This 
conception  of  an  impartial  presiding  officer  was  clearly  established 
at  the  adoption  of  the  Constitution,  but  no  clause  compels 
Congress  to  follow  the  English  precedent. 

Precedent  for  The  framers*of  the  Constitution  were,  however,  familiar  with 
conception^?  a  different  type  of  Speaker.  The  Spgffers  of  the  colonial 
the  speaker  assemblies  wfiEeJreque.ntly  the  political  leader.^  nfjheir.  colonies 
and  often  in  opposition  to  the  provincial  governors.  The  presi- 
dent of  the  Continental  Congress  was  not  merely  a  presiding 
officer  but  was  charged  with  a  few  executive  duties.  The 
Speakers  of  the  early  assemblies  in  the  newly  formed  states  did 
not  seek  to  occupy  an  impartial  position  but  to  direct  the  course 
of  legislation.  Thus,  historically,  there  was  ample  American 
precedent  for  a  political  Speaker.  Moreover,  as  has  been  pointed 
out,  the  absolute  reparation  of  the  executiv^_amL  legislative 
departments  of  the_governmejil  precluded  the  development  of 
the  cabinet  system  with  the  leader  responsible  to  the  legislature. 


CONGRESS  AT  WORK  317 

Leadership  must^he  exercised,  and  what  was  more  natural  than 
the  development  of  the  Speakership  along  traditional  American 
lines  ?  The  Speaker  thus  soon  became  not  merely  the  presiding 
officer  but  the  leader  of  the  House.  With  the  development  of 
parties  he  became  a  party  leader.  As  the  influence  of  these 
parties  increased,  his  power  grew.  With  the  constantly  increasing 
size  of  the  House  and  the  enormous  expansion  of  business  his 
power  still  further  developed,  so  that  he  dominated  the  House, 
directed  its  procedure,  and  apparently  determined  legislation. 

In  the  popular  mind  the  control  which  the  Speaker  exercised  source  of  the 
was  thought  to  come  from  his  position  as  Speaker  rather  than 
his  influence  as  leader.  While  it  is  perfectly  true  that  the 
rules  of  the  House  did  vest  many  important  prerogatives  in 
the  Speaker's  hands,  yet  even  with  these  powers  the  House 
did  refuse  to  follow  a  Speaker  who  was  not  a  real  and  trusted 
leader,  and  did  defy  and  thwart  successfully  the  most  masterful 
of  Speakers,  T.  B.  Reed.1  Moreover,  in  the  62d  Congress, 
1911-1913,  Oscar  W.  Underwood,  as  floor  leader,  without  the 
prerogatives  of  a  presiding  officer,  exercised  as  effective  control 
as  did  Speaker  Cannon,  under  whom  the  powers  of  the  Speaker 
reached  their  highest  development.  Thus,  in  order  to  get  a  true 
conception  of  the  American  Speaker  it  will  be  necessary  to  ex- 
amine with  care  not  merely  the  powers  given  him  by  the  rules, 
which  apparently  give  him  his  prestige,  but  to  bear  in  mind  as 
well  that  these  powers  are  exercised  only  at  the  will  of  the 
House  and  that  the  real  influence  of  the  Speaker  comes  quite 
as  much  from  -his  position  as  'Que__o^  the  foremost  leadejg.  of 
hisj^arty  as^Jrom  his  prerogatives  as  Speaker. 

There  are  no  instructions  or  directions  in  the   Constitution  choice  of  the 
concerning  the  choice  of  the  Speaker.    It  is  left  entirely  to  the  Spea 
discretion  of  the  House,  and  since  the  Constitution  repeatedly 
emphasizes  the  separation  of  departments,  no  executive  approval 
is  required,  as  is  still  the  formal  custom  in  England.    The  House 
might  thus  decide  to  elect  as  its  presiding  officer  one  who  was 

1  The  resolution  annexing  the  Sandwich  Islands,  which  was  an  unprivileged 
one  and  had  Speaker  Reed's  determined  opposition,  Was  forced  through  to  its 
passage  in  spite  of  the  Speaker's  influence  and  all  the  parliamentary  opposition 
which  he  and  the  Committee  of  Rules  could  devise. 


Process  of 
election  of 
the  Speaker 


Choice  of 
Speaker  de- 
termined in 
party  caucus 


Reasons  for 
choice  of 
Speaker : 


(i)  Parlia- 
mentary 
knowledge 


318    THE  GOVERNMENT  OF  THE  UNITED  STATES 

not  a  member,  as  it  does  actually  do  in  the  case  of  the  clerk.  Both 
English  precedent  and  American  practice  were  opposed  to  such 
a  proceeding,  and  from  the  first  the  Speaker  has  always  been  a 
member  of  the  House.  Unlike  the  English  method  the  Speaker 
is  always  chosen  from  the  majority,  and  from  I/991  he  has 
always  been  strictly"^  party  "Speaker. 

The  formalities  of  the  election  are  simple.  After  the  clerk 
has  called  the  temporary  roll  to  determine  whether  a  quorum  is 
present,  he  announces  that  the  next  business  is  the  election  of 
a  Speaker.  Nominations  are  made,  and  the  clerk  appoints  tellers 
and,  upon  their  report,  announces  the  election  of  the  Speaker, 
who  is  escorted  to  the  chair  by  a  committee  headed  by  the 
defeated  candidate.  Contrary  to  English  practice,  where  election 
and  reelection  is  the  rule  in  spite  of  party  changes,  there  is 
always  a  contest.  The  defeated  candidate  generally  becomes 
floor  leader  of  the  minority,  and  in  former  times  the  Speaker's 
party  rival  became  the  floor  leader  of  the  majority. 

Although  the  formal  election  is  made  in  the  House,  the  actual 
choice  rests  with  the  party  in  majority,  and  the  selection  is  made 
in  party  caucus.  In  this  meeting  the  claims  of  the  rival  candi- 
dates are  settled,  and  the  choice  usually  commands  the  full 
strength  of  the  party  vote.  The  advantages  of  this  method  of 
selection  are  obvious.  Party  disputes  and  personal  claims  are 
settled  in  private  without  the  presence  of  a  rival  party  ready  to 
take  advantage  of  disagreements  and  personal  ambition.  Should 
the  dispute  be  transferred  to  the  floor  of  the  House,  there  would 
be  opportunities  for  coalitions  with  the  minority  and  even  the 
possibility  of  the  election  from  that  party. 

Various  motives  lead  members  to  support  a  particular  candi- 
date. It  might  be  supposed  that  knowledge  of  parliamentary 
procedure  was  indispensable,  but  although  such  is  desirable  the 
technical  knowledge  of  parliamentary  procedure  is  supplied  by 
the  Speaker's  clerk,  who  is  always  an  expert  parliamentarian. 
Firmness,  fairness,  and  a  commanding  presence  are  more  neces- 
sary than  technical  knowledge.  Upon  certain  occasions  industrial 
and  commercial  interests  which  desired  or  feared  governmental 
action  have  used  their  influence  upon  members  to  bring  about 

1  Theodore  Sedgwick,  of  Massachusetts,  Speaker,  1799-1801. 


CONGRESS  AT  WORK  319 

the  selection  of  a  Speaker  in  sympathy  with  their  aims.  It  is  (a)  supposed 
usually  supposed  that  candidates  obtain  the  support  of  certain  Committee 
prominent  members  by  the  promise  of  important  committee  as-  assi«nments 
signments.  To  what  extent  this  is  common  it  is  difficult  to  say ; 
but  in  at  least  one  instance  it  was  openly  admitted.  Perhaps  it 
would  be  fair  to  say  that  Speakers  put  their  supporters  on  im- 
portant committees,  not  as  the  reward  of  promised  votes  but  to 
insure  legislation  they  mutually  desire.  Thus  Carlisle  before 
appointing,  certain  chairmen  required  the  assurance  that  they 
would  not  report  measures  contrary  to  his  views  ; 1  and  there  can 
be  no  doubt  that  Mr.  Payne,  as  chairman  of  the  Committee  on 
Ways  and  Means,  held  views  concerning  protection  in  harmony 
with  those  of  Speaker  Cannon.  But  above  all  these  more  petty 
motives  rises  the  political  one.  What  are  the  Speaker's  prin-  (3)  Political 
ciples,  and  what  does  he  propose  to  do  ?  The  successful  candi-  P 
date  is  generally  some  prominent  member  of  the  House  who  has 
a  national  reputation  and  stands  for  a  certain  type  of  legislation. 
Galusha  Grow  was  elevated  to  the  Speaker's  chair  for  his  activi- 
ties in  the  abolition  movement,  as  partially  exemplified  by  his 
knocking  down  a  Southern  member  in  an  encounter  on  the  floor 
of  the  House.2  •  Generally,  however,  the  reputation  of  the  candi- 
dates rests  upon  a  more  substantial  foundation.  Carlisle,  for 
example,  brilliant  parliamentarian  that  he  was,  was  elected 
because  of  his  reputation  as  a  tarjff__reformer ;  while  Camion, 
although  considered  a  rather  mediocre  parliamentarian,  was 
chosen  on  account  of  his  personal  popularity  and  his  conserva- 
tive  principles.  These  examples  emphasize  the  fact  that 'the  "suc- 
cessful  Speakers  have  generally  been  chosen  because  they  were 
leaders  in  some  field,  not  that  they  became  leaders  because  they 
were  chosen  Speakers.3  Genuine  political  ability,  harmony  with  (4)  Ability 
the  political  ideas  of  a  large  number  of  prominent  members  of 
the  majority,  personal  popularity,  and,  above  all,  tact  and  skill  in 
leading  the  majority  to  his  point  of  view  are  the  most  important 

1  DeA.  S.  Alexander,  History  and  the  Procedure  of  the  House  of  Repre- 
sentatives, pp.  69,  70. 

2  Ibid.  p.  45,  quoting  Elaine,  Twenty  Years  in  Congress,  Vol.  I,  p.  324. 

3  The  converse  of  this  statement  is  seen  in  the  fate  which  overtook  Keifer, 
who  was  in  no  sense  a  leader,  and  whose  choice  was  an  unfortunate  accident. 


320    THE  GOVERNMENT  OF  THE  UNITED  STATES 

qualities  considered  in  the  choice  of  a  Speaker,  and  form  the 
basis  of  his  power  quite  as  much  as  the  technical  knowledge  of 
procedure,  helpful  and  important  as  this  may  be. 

The  powers         Primarily,  the  Speaker  is  elected  to  maintain^or^er  and  to 

speaker :  insure  the  proper  conduct  ofjusipess.  In  an  assembly  of  over 
four  hundred thK-TS-TT6~Hsy1askryet  the  House  of  Representa- 
tives, while  not  as  orderly  as  the  English  Commons,  far  exceeds 

(i)  Mamte-  the  French  Chamber  of  Deputies  in  this  respect.  In  England 
Jr  the  Speaker  is  regarded  with  such  deference  that  usually  upon  a 
word  from  him  the  House  becomes  quiet,  although  he  has  been 
known  to  be  compelled  to  leave  the  chair  and  suspend  the  sit- 
ting. In  France  the  president  of  the  Chamber  of  Deputies  is 
armed  with  a  bell  which  he  rings  violently,  and  when  ordinary 
admonition  fails  he  puts  on  his  hat  as  a  sign  that  the  session 
is  suspended.  In  the  United  States  the  Speaker  has  a  mallet, 
the  gavel,  with  which  he  pounds  the  desk  in  front  of  him  to 
quiet  disturbance,  or  in  more  serious  cases  he  may  direct  the 
sergeant  at  arms  to  proceed  with  the  mace,  the  symbol  of  the 
authority  of  the  House,  to  the  center  of  the  disturbance.  Once,  in 
1876,  threats  were  made  to  call  the  Capitol  police,  but  the  threat 
was  sufficient.  The  Speaker  is  authorized  to  suspend  all  business 
until  order  is  obtained,  and  usually  the  words  "  The  gentleman 
will  suspend  until  the  House *is  in  order  "  are  sufficient.  Recalci- 
trant individuals  may  be  named  by  the  Speaker,  a  procedure  which 
compels  the  House  to  act  and  acquit  or  punish  the  offender. 

(a)  Points  of  The  most  difficult  task  of  the  Speaker  is  to  see  that  business 
proceeds  in  accord  with  the  rules  of  the  House  and  that  mem- 
bers follow  the  rules.  These  rules,  as  will  be  seen,  are  of  a 
highly  technical  nature  and  are  probably  fully  understood  •  by 
only  a  small  fraction  of  the  members.  Debates  and  procedure 
are  being  constantly  interrupted  by  claims  of  points  of  ordei 
which  the  Speaker  must  decide.  Able  parliamentarian  as  th< 
Speaker  may  be,  he  is  often  forced  to  rely  upon  his  clerk. 

[Decisions  by       The  Speaker  may  decide  the  question  offhand,  as  one  which 

the  Speaker       f  u    •         i         •  i  • 

on  points  tails  obviously  within  a  rule  ;  or  he  may  hear  the  arguments  and 
opinions  of  some  of  the  members.  How  many  he  shall  listen  to 
or  how  long  the  argument  shall  continue  is  entirely  within  his 
discretion.  In  the  revolution  which  overthrew  the  Committee  on 


CONGRESS  AT  WORK  321 

Rules  in  1910,  Speaker  Cannon  allowed  the  discussion  to  con- 
tinue for  a  day  and  a  night,  most  of  which  time  he  was  not  in 
the  chair,  while  frantic  attempts  were  being  made  to  gather  a 
safe  majority  to  sustain  his  expected  ruling.  But  whether  the 
decision  of  the  chair  is  made  as  the  result  of  discussion  or  made 
upon  the  spur  of  the  moment,  this  decision  stands  until  over- 
ruled by  the  House.  Any  member  may  take  an  appeal  from  the 
ruling  of  the  chair  to  the  House.  It  is  this  right  of  appeal  which 
caused  Speakers  like  Reed  and  Cannon  to  assert  that  the  Speaker 
had  no  arbitrary  power,  that  he  was  but  the  servant  of  the 
House.  Theoretically  this  is  true.  Practically,  however,  it  is 
almost  useless  for  a  member  of  the  minority  to  take  an  appeal  to 
the  majority,  for  generally  they  will  support  the  decision  of  their 
own  Speaker.  Moreover,  for  a  member  of  the  majority  to  invoke 
unsuccessfully  this  right  would  be  to  invite  retribution,  while  a 
successful  appeal  might  precipitate  a  revolution  as  in  1910. 

Most   of  the  rulings  are  made  according  to  precedent.1   So  [strength  of 
strong  is  this  power  that  Speakers  have  been  known  to  rule  con-  ] 
trary  to  their  own  personal  opinion  in  order  to  keep  the  practice 
in  harmony  with  the  past.    Some  rulings,  however,  are  made 
as  the  result  of  personal  conviction ;  for  example,  the  famous 
rulings  of  Speaker  Reed.    Others,  upon  political  or  party  ques- 
tions, may  reflect  not  simply  the  Speaker's  opinion  but  a  policy 
adopted  by  the  majority. 

In  legislative  bodies  no  one  may  address  the  assembly  unless  (3)  Recogm- 
recognized  by  the  presiding  officer.  Disputed  claims  of  recogni- 
tion arise  which  are  settled  by  various  methods.  In  the  House 
of  Lords  the  House  itself  decides  by  vote  which  member  it 
will  listen  to.  In  the  American  House  of  Representatives 
recognition  has  always  been  the  prerogative  of  the  Speaker. 
"  When  two  or  more  members  arise  at  once  the  Speaker 
shall  name  the  member  who  shall  speak."2  From  this  rule 
adopted  in  1789  Speakers  went  further  and  claimed  that  it  gave 
them  the  authority  to  name  the  member  entitled  to  the  floor. 
From  this  was  developed  the  custom  of  the  Speaker's  recog- 
nizing whomsoever  he  wished  for  political  purposes,  and  of 

1  A.  Hinds,  Precedents,    in  eight  large  volumes,  will   furnish  material  for 
the  curious.  2  Rule  X,  Sect.  2. 


322    THE  GOVERNMENT  OF  THE  UNITED  STATES 

refusing  to  recognize  those  whose  ideas  did  not  meet  with  his 
approval.    Although  this  power  was  used  by  other  Speakers  to 
insure  the  consideration  of  party  measures,  it  reached  its  highest 
point  in  the  Speakership  of  Carlisle,  who  gave  or  withheld  recog- 
nition  according    as   the    members    agreed    with    his  personal 
opinions.    Thus  the  Blair  Education  Bill,  which  had  three  times 
passed  the  Senate  and  was  likely  to  obtain  a  favorable  hearing 
in  the  House,  was  never  considered,  because  Carlisle  during  his 
three  terms  consistently  refused  to  recognize  anyone  to  bring  it 
up.1   And  in  1885  he  prevented  a  revision  of  the  internal  revenue 
laws  by  refusing  to  recognize  anyone  to  make  such  a  motion. 
[Members  are       Recognition  even  of  the  members  of  the  Speaker's  own  party 
rp1lrtfcuiar0r  cannot  be  a  chance  affair,  so  the  Speaker  must  know  from  pre- 
en^ beV  hence  V1OUS  interviews  how  the  members  stand  on  every  question,  and 
often  consult    he  generally  fortifies  himself  with  a  list  of  those  whom  he  has 

the  Speaker  *  .  _ 

in  advance]  agreed  to  recognize.  In  case  a  member  obtains  the  floor  by  some 
accident,  the  Speaker  may  withdraw  his  recognition  in  these 
words :  "  The  gentleman  is  not  recognized  for  that  purpose. 
The  gentleman  from  -  -  is  recognized."  Oftentimes  members 
are  quite  astonished  to  find  themselves  recognized.  Thus  Speaker 
Reed  prevented  the  consideration  of  a  resolution  in  favor  of  the 
Cuban  insurgents  as  follows : 

The  gentleman  from  Maine  moves  the  House  do  now  adjourn.  Do 
I  hear  a  second  ?  The  motion  is  seconded.  The  question  is  now  on 
the  motion  to  adjourn.  All  in  favor  will  say  "  aye."  Those  opposed 
"  no."  The  "  ayes  "  have  it.  The  House  stands  adjourned.2 

Mr.  Dingley,  the  gentleman  from  Maine  and  the  majority  leader, 
was  deep  in  tariff  schedules  and  had  not  spoken  a  word  ;  no  one 
had  seconded  the  motion,  and  hardly  ten  members  had  voted. 

Although  the  Speaker's  prerogative  of  recognition  is  very 
important,  there  are  many  limitations  upon  it.  The  most  impor- 
tant Jimitation  lies  in  the  orderof  business  established  by"  the 
rulesjrf  the^House.  Certain  business,  THte~7eports  from  the 
Committee  TJrTRules  concerning  the  procedure  of  the  House,  is 

1  M.  P.  Follett,  The  Speaker  of  the  House  of  Representatives,  p.  262. 

2  H.  B.  Fuller,  The  Speakers  of  the  House,  p.  234.    This  anecdote  is  prob- 
ably apocryphal,  as  no  motion  in  the  House  ever  requires  a  second. 


[Limitations 
on  the 
Speaker's 
power  of 
recognition] 


CONGRESS  AT  WORK  323 

in  order  at  any  time,  and  the  chairman  must  be  recognized  by 
the  Speaker.  Likewise  about  twenty  committees 'have  the  privi- 
lege of  reporting  at  any  time.  Moreover,  the  House  has  set 
apart  certain  days  for  the  consideration  of  business  of  a  particu- 
lar character,  as,  for  example,  the  business  of  the  District  of 
Columbia  is  always  in  order  upon  the  second  and  fourth  Mondays 
of  each  month.  Thus,  it  is  readily  seen  that,  while  for  the 
minority  the  Speaker's  power  of  recognition  may  seem  arbitrary, 
it  is  so  limited  that  the  will  of  the  majority,  even  against  the 
desire  of  the  Speaker,  is  bound  to  prevail. 

Until  January  18,   1790,  the  committees  of  the  House  were  (4>Theap- 
elected  by  ballot,  but  from  that  date  until  1911  both  the  com-  commTttees°f 
mittees  and  their  chairmen  have  been  named  by  the  Speaker.  ^speaker's 
This  has  been  regarded  as  one  of  his  greatest  prerogatives  and,  g^e^iv 
as  will  be  seen,  resulted  both  in  keeping  discipline  and  in  deter-  limited  by 
mining  the  character  of  the  legislation  of  the  House.    To  the 
exercise  of  this  prerogative  are  many  limitations.    The  first  and 
most  obvious  one  is  the  limitation  of  party.    In  the  early  years 
of  the  government  it  was  held  that  committees  were  impartial 
investigating  bodies  to  be  composed  of  the  most  able  members 
irrespective  of  party.    Although  this  idea  soon  disappeared,  it 
was  long  customary  to  give  important  members  of  the  minority 
chairmanships  of  committees.1  Even  this  custom  has  disappeared, 
and  the  majority  of  each  committee  as  well  as  the  chairman 
closely  follow  the  party  changes  of  the  House.    Moreover,  since 
the  Speaker  is  elected  by  the  dominant  group  within  his  party,   (a)  the  domi- 
this  group  receives  the  most  important  assignments.     Next  to  hisvStyp: 
party  comes  the  question  of  political  expediency.   The  party  may  (&)  party 
be  pledged  to  a  particular  policy,  and  the  committees  must  be  exped 
framed  with  that  end  in  view.     The  Speaker,  moreover,  may 
have  incurred  obligations  in  securing  his  election  which  he  must  (c)  obiiga- 
repay  by  committee  appointments,  although  the  extent  to  which 
this  is  done  cannot  be  definitely  known.    Sectional  claims  were  (d)  sectional 
formerly  much  considered,  and  Pennsylvania  and  New  England 
were  supposed  always  to  have  representatives  on  the  Committee 

1  Thus  Clay  made  Webster  chairman  of  the  Judiciary  in  1823,  and  J.  Q.  Adams 
was  chairman  of  some  committee  during  most  of  his  service.  —  M.  P.  Follett, 
The  Speaker  of  the  House  of  Representatives,  p.  226 


324 


THE  GOVERNMENT  OF  THE  UNITED  STATES 


(e)  length  of 


(/)  ability  of 


The  speaker 
his  power  to1" 


member 


changes  in 
election  of° 


tionbatithe~ 
House7 


on  Ways  and  Means  and  New  York  on  the  Committee  on  Com- 
merce. Although  these  sectional  claims  are  not  now  perhaps  so 
much  urged,  charges  of  sectional  favoritism  are  always  made 
when  the  Democrats  obtain  control  of  the  House,  for  the  majority 
of  their  party  is  always  from  the  South.  Length  of  service  gen- 
erally brings  promotion,  and  thus  it  generally  happens  that  since 
Southern  Democrats  are  more  generally  reflected  than  the  North- 
ern,  they  are  made  chairmen  of  the  committees.  Every  Speaker 
must  consider  ability  ;  consequently  a  Speaker  may  be  forced  to 
violate  the  claims  of  seniority,  sectionalism,  and  even  personal 
gratitude  for  the  sake  of  obtaining  a  committee  or  chairman 
capable  of  leading  the  House  to  adopt  the  desired  policy. 

In  spite  of  these  limitations  the  power  of  appointment  was  still 
the  strongest  weapon  in  the  Speaker's  arsenal  urttil  1911.  A  mem- 
ber  was  made  or  marred  by  the  committee  appointment  he  received. 
A  member  of  the  Committee  on  the  Disposal  of  Useless  Executive 
Papers,  although  he  might  share  an  office  and  have  the  appoint- 
ment of  a  clerk,  had  little  opportunity  for  attracting  public  atten- 
tion or  for  accomplishing  much  for  his  constituents.  In  contrast 
the  members  of  the  Committees  on  Ways  and  Means,  Appropri- 
ations, and  Judiciary  are  frequently  in  the  public  eye,  while  a 
member  of  the  Committee  on  Rivers  and  Harbors  has  opportuni- 
ties to  secure  favors  which  strengthen  his  hold  in  his  district  and 
lengthen  his  political  career.  Nevertheless,  the  House,  in  spite  of 
the  possibilities  of  favoritism,  continued  the  practice  until  19  n.1 

In  1910  and  19  1  1  the  change  was  made.  Speaker  Cannon, 
who  had  the  longest  continuous  service  of  any  Speaker,  believed 
as  other  Speakers  had  that  it  was  his  function  and  duty  to  see 
that  the  House  framed  and  adopted  legislation  of  which  he 
approved  Personally-  To  accomplish  this  he  exerted  to  the  utmost 
the  powers  already  discussed  and  resolutely  closed  his  ears  to  the 
demands  of  a  slowly  increasing  number  of  Western  Republicans 
whom  he  considered  radicals  and  heretics.  In  the  6ist  Con- 
gress, 1909,  the  Republicans  had  a  majority  of  about  fifty,  but  of 

1  Attempts  to  amend  the  rule  and  elect  the  committees  were  made,  but 
lefeated  in  1806  by  a  vote  of  42  to  44  ;  in  1807  by  a  vote  of  24  to  87  ;  in  1832 
by  a  vote  of  100  to  100,  Speaker  Stevenson  voting  to  retain  his  privilege;  in 
1849  and  in  1881  by  a  vote  of  74-10  236.  —  De  A.  S.  Alexander,  History  and 
the  Procedure  of  the  House  of  Representatives,  pp.  76-80 


CONGRESS  AT  WORK  325 

this  number  about  thirty-five  so  chafed  under  Cannon's  methods 
or  smarted  under  his  discipline  that  they  were  known  as  insur- 
gents. On  March  19,  1911,  after  three  days  of  parliamentary 
wrangling  and  an  all-night  session,  the  insurgents  and  Democrats 
succeeded  in  passing  a  resolution  that  the  Committee  on  Rules 
should  no  longer  be  appointed  by  the  Speaker,  but  should  consist 
of  ten  majority  members  and  four  minority  members  elected  by 
the  House,  and  that  the  Speaker  should  not  be  a  member  of  this 
committee.  When  the  Democrats  obtained  control  of  the  House 
in  the  next  Congress  (63d,  1913)  they  so  amended  the  rules  that 
all  committees  should  be  elected  by  the  House.  In  actual  prac- 
tice, from  1913  on,  the  caucuses  of  the  respective  parties  have 
chosen  the  members  of  the  Committee  on  Ways  and  Means,  and 
each  party  delegation  has  picked  the  party  members  of  the  other 
committees.  This  selection  is  then  submitted  to  the  party  caucus, 
and  the  results  reported  to  the  House  and  ratified.1 

It  is  yet  too  early  to  determine  whether  this  change  will  remain  Effect  of 
permanent,  should  the  Republicans  return  to  power,  and  it  is 
also  too  early  to  generalize  extensively  upon  its  effect.    Under 


the  old  system  the  leadership  of  the  House  was  in  the  hands  of  the  floor 
one  man  —  the  Speaker.  He  was  the  leader  because  the  House 
generally  followed  him  and  had  delegated  to  him  and  concen- 
trated in  his  hands  sufficient  power  to  make  his  leadership  effec- 
tive. Under  the  present  system  the  Chairman  of  the  Committee 
on  Ways  and  Means,  the  chairman  of  the  Committee  on  Rules, 
and  the  Speaker  exercise  portions  of  the  Speaker's  former  great 
powers.  The  old  Speakership  is  in  commission.  It  is  felt  by 
some  that  danger  lies  in  so  distributing  the  powers  and  dividing 
the  responsibility.  "  For  if  the  trumpet  give  an  uncertain  sound, 
who  shall  prepare  himself  to  the  battle  ?  "  But  the  most  obvious 
result  has  been  the  fact  that  a  real  leader  could  lead  the  House 
without  all  of  the  Speaker's  powers.  This  was  demonstrated  by 
Mr.  Underwood  in  the  62d  and  63d  Congresses,  when  as  chair- 
man of  the  Committee  on  Ways  and  Means  and  thus  floor  leader 
of  the  majority,  he  exercised  quite  as  much  influence  and  authority 
as  the  strongest  Speakers  have  ever  done.  Indeed,  there  was  some 

1  From  1913  to  1917  the  Republican  caucus  vested  the  choice  of  the  Republican 
members  in  James  R.  Mann  of  Chicago,  the  minority  floor  leader. 


The  function 
of  the  vice 
president  as 
presiding 
officer  of  the 
Senate 


The  president 
pro  tempore 


326    THE  GOVERNMENT  OF  THE  UNITED  STATES 

complaint  that  there  was  little  difference  between  Cannon  in  the 
chair  and  Underwood  on  the  floor.  Since  his  transfer  to  the 
Senate  the  Democrats  have  not  been  so  fortunate  in  possessing 
a  leader  of  similar  marked  ability  and  qualities  ;  nevertheless,  by 
constant  use  of  the  party  caucus  they  have  generally  succeeded 
in  holding  their  majority  together  so  that  they  obtained  the  legis- 
lation they  desired.  In  the  6sth  Congress,  however,  when  the 
parties  were  practically  divided  and  the  floor  leader  of  the  Dem- 
ocrats not  in  harmony  with  the  president,  their  success  was 
not  so  marked.  Should  the  change  in  the  Speaker's  position 
be  permanent,  it  would  seem  that  the  person  desiring  active  lead- 
ership will  not  seek  the  Speakership,  but  some  other  position. 
There  is  thus  the  possibility  that  the  Speaker  may  in  time  become 
an  impartial  presiding  officer  shorn  of  any  great  political  influence 
but  always  possessed  of  great  dignity. 

THE  PRESIDING  OFFICER  OF  THE  SENATE 

By  the  Constitution  the  presiding  officer  of  the  Senate  is  the 
vice  president  of  the  United  States.  Unlike  the  Speaker  of  the 
House  he  is  not  a  member  of  the  Senate,  and  thus  is  in  no  sense 
a  leader.  On  the  contrary,  he  has  no  power  of  appointment  and 
little  power  from  his  functions  as  a  presiding  officer.  All  that  is  re- 
quired is  dignity  and  sufficient  ability  to  conduct  the  affairs  of  the 
very  orderly  Senate  in  accordance  with  the  rules.  He  may  decide 
questions  of  order,  but  appeals  are  frequent,  and  sometimes  he 
prefers  to  submit  the  question  to  the  Senate  without  attempting  a 
ruling  of  his  own.  Nevertheless,  in  the  6ist  Congress  Vice  Presi- 
dent Sherman  came  perilously  near  putting  measures  through  by 
methods  utilized  by  some  of  the  Speakers  of  the  House.1 

The  Senate  at  times  chooses  one  of  its  members  to  act  as 
president  pro  tempore,  in  the  absence  of  the  vice  president.  His 
position  is  quite  different  from  that  of  the  vice  president.  He 
loses  none  of  his  prerogatives  as  a  senator,  and  at  certain  periods 
has  been  vested  with  the  power  of  appointing  committees.  If 
not  the  actual  leader  of  the  Senate,  he  is  one  of  the  group  which 
controls  the  action  of  the  majority. 

1  Congressional  Record,  March  4,  1911,  p.  4285. 


CONGRESS  AT  WORK  327 

FLOOR  LEADERS 

Both  the  majority  and  minority  parties  are  represented  on  the  original 
floor  by  official  spokesmen  known  as  floor  leaders.  The  power 
of  floor  leaders  has  greatly  increased  since  1911  as  that  of  the 
Speaker  has  declined,  and  their  functions  have  undergone  a  most 
interesting  evolution.  Originally  they  were  lieutenants  of  the 
Speaker,  acting  in  cooperation  with  him  or  according  to  his 
directions.  It  was  their  duty  to  open  and  close  debate,  to  make 
the  necessary  formal  motions,  to  be  ready  for  any  emergency, 
and  to  avoid  the  pitfalls  which  the  opposition  was  sure  to  pre- 
pare for  them.  Nominally  they  had  control  of  all  of  the  time 
for  debate  which  usually  is  divided  between  the  majority  and  the 
opposition  parties.  This  control  was  exercised  either  by  keeping 
control  of  the  floor  and  yielding  to  certain  members,  or  by  pre- 
paring a  list  of  members  whom  the  Speaker  recognized  in  turn. 
Thus  they  had  it  in  their  power  to  give  a  new  member  oppor- 
tunity to  be  heard  and  gain  notice  and  attract  attention.  But, 
since  the  time  demanded  for  recognition  exceeds  the  available 
time,  it  was  necessary  to  make  a  careful  selection  from  th.e  mem- 
bers desiring  to  speak.  Opportunity  for  the  strongest  speakers 
must  be  reserved,  but  a  portion  of  the  time  must  be  assigned  to 
members  less  able  in  order  to  promote  party  harmony  and  satis- 
faction. Before  the  Speaker  was  shorn  of  so  much  of  his  power, 
the  position  of  floor  leader  of  the  minority  was  given  to  the 
defeated  candidate  for  the  Speakership,  while  that  of  the 
majority  was  assigned  to  the  Speaker's  nearest  rival  in  the  party 
caucus  or  divided  among  the  chairmen  of  the  important  com- 
mittees. The  Chairman  of  the  Committee  on  Ways  and  Means 
and  the  Chairman  of  the  Committee  on  Rules  obviously  exer- 
cised the  functions  most  frequently.  But  since,  during  the  period 
of  Republican  control  from  1896  to  1911,  the  caucus  was  used 
but  sparingly,  the  Speaker  really  dominated  the  House  and 
might  utilize  the  chairman  of  any  committee  as  floor  leader. 

When  the    Democrats    came  to    power  in    1911    they  were  Thedevei- 
pledged  to  overthrow  "  Cannonism";  that  is,  the  domination  of 
the  Speaker.    The  instruments  they  used  were  the  caucus,  the 
Committee  on   Rules,  and  the  floor  leader.    They  were  most 


328    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Underwood 


Effect  of 
change 


The  floor 
leader  of  the 
minority 


fortunate  in  the  choice  of  their  floor  leader,  Oscar  W.  Underwood. 
He  had  been  a  member  of  the  House  since  1895  and  had  served 
on  the  Committee  on  Ways  and  Means  from  the  position  of  last 
member  for  the  minority  until  in  1911  he  became  chairman. 
He  was  thoroughly  cognizant  of  the  work  of  the  committee  and 
could  speak  with  authority  upon  all  phases  of  the  tariff.  Lack- 
ing perhaps  the  keenness  of  Williams  and  the  oratory  of  Clark, 
the  preceding  leaders,  he  had  solid  common  serise  and  great 
knowledge,  and  attained  a  personal  popularity  second  only  to  that 
of  Speaker  Clark.  He  was  a  genuine  leader.  In  the  caucus  held 
preliminary  to  the  62d  Congress  Clark  was  nominated  Speaker, 
while  Underwood  was  chosen  chairman  of  the  Committee  on 
Ways  and  Means,  charged  with  the  framing  of  the  tariff.  In 
addition,  the  caucus  voted  to  vest  in  the  committee  the  nomina- 
tion of  other  committees.  His  position  was  vastly  different  from 
that  of  previous  floor  leaders,  and  from  those  under  the  Republican 
regime,  when  the  appointment  of  the  committees  was  vested  in 
the  Speaker.  He  became  thus  the  most  powerful  man  in  the 
House,  able  to  control  not  only  the  action  of  the  caucus  but  of 
the  House  as  well. 

Since  191-1,  then,  the  power  of  the  organization  has  not 
diminished  ;  in  fact,  the  pressure  of  the  party  organization  is  felt 
more,  but  it  is  the  organization  of  the  party  in  caucus  rather 
than  the  personal  organization  of  the  Speaker.  Moreover,  this 
organization  is  directed  from  the  floor,  instead  of  being  controlled 
by  the  Speaker  utilizing  his  parliamentary  powers  as  a  presiding 
officer  for  party  ends.  The  discipline  of  the  Democrats  seemed 
almost  as  good  as  that  of  the  Republicans  during  their  control 
of  the  House,  and  there  is  less  dissatisfaction  among  the  majority 
than  there  was  under  the  old  system. 

The  functions  of  the  floor  leader  of  the  minority  are  similar 
to  those  of  the  leader  of  the  majority  except  that  he  is  always 
unsuccessful.  Towards  his  ^own  party  he  occupies  much  the 
$ame  position  as  the  leader  of  the  majority  — he  must  lead, 
must  be  able  to  influence,  persuade,  and  control.  He  initiates 
the  policy  of  opposition,  makes  the  formal  motions  in  opposition 
to  the  party  in  power,  opens  the  debate  for  the  minority,  and 
allots  the  time  to  the  members  of  his  own  party.  Before  1911 


CONGRESS  AT  WORK  329 

he  served  as  one  of  the  minority  members  of  some  committee, 
but  since  that  time  James  R.  Mann,  the  Republican  leader,  has 
taken  no  committee  assignment,  but  has  devoted  all  his  time 
and  attention  to  his  work  on  the  floor. 

While  it  would  be  too  much  to  say  that  the  floor  leaders  Development 
operate  as  those  in  the  British  House  of  Commons,  yet  the  ° 
criticism  made    by    Lord  Bryce    in   1888    that   there  were  no 
responsible  leaders  in  Congress  is  less  true  to-day.    The   floor 
leaders  are  not  responsible  in  a  parliamentary  sense  as  are  the 
cabinet  ministers  in  Great  Britain,  yet  party  control  has  greatly 
strengthened  them,  and  with  it  has  come  a  development  of  their 
power  and  a  fixing  of  responsibility  upon  them. 

The  parties  in  the  Senate  do  not  choose  floor  leaders.    Per-  Floor 
sonal  influence  combined  sometimes  with  the   chairmanship  of  th^senate 
a  committee  acting  upon  important  measures  gives  to  different 
members  at  different  times  a  position  somewhat  analogous   to 
that  of  the  floor  leaders  in  the  House.    Nevertheless,  if  not 
from  actual  choice,  certain  members  are  tacitly  recognized  and 
followed  as  the  leaders  of  their  respective  parties. 

THE  COMMITTEE  ON  RULES 

As  an  instrument  of  party  organization  and  leadership  the  The  nominal 
Committee  on  Rules  is  most  important.    Before  1910  it  was  a  and  actual 


small  committee  of  five  appointed  by  the  Speaker  who  always 
designated  himself  as  one  member.  Hence  it  was  sometimes 
referred  to  as  the  Speaker  and  his  two  assistants  —  the  minority 
members  not  being  considered.  The  importance  of  the  committee 
lies  not  so  much  in  the  fact  that  it  nominally  reports  amendments 
to  the  rules  and  procedure  of  the  House,  as  in  the  fact  that  at 
any  time  it  may  report  a  special  rule.  Moreover,  since  the 
chairman  of  the  committee  on  making  his  report  may  at  the 
same  time  move  the  "previous  question,"  which  limits  debate 
to  one  hour,  it  gives  to  the  committee  a  very  real  and  actual 
control  of  the  business  of  the  House. 

Legislation  in  the  House  under  the  ordinary  rules  is  a  very  The  power 
difficult  and  slow  process,  with  many  opportunities  for  possible  committee 
amendments  and  delay.  Hence  much  of  the  actual  work  of  the  J°  co,ntj.01 

legislation 

House  is  done  under  unanimous  consent  or  special  rule.    It  is 


330    THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  Commit- 
tee on  Rules 
before  ign 


Changes  in 
1911 


Effect  of 
these  changes 


here  that  the  power  of  the  Committee  on  Rules  is  important 
and  all-pervasive.  As  has  been  said,  it  may  report  at  any  time 
a  special  rule.  This  rule  may  determine  the  order  of  business ; 
that  is,  it  may  interrupt  the  discussion  of  a  measure  and  substitute 
another.  It  may  do  even  more  than  that;  it  may  limit  the 
debate  and  fix  the  time  for  the  final  vote  on  the  measure.  It 
may  decree  that  no  amendments  shall  be  offered  and  that  the 
measure  shall  be  voted  on  as  reported,  or  it  may  designate 
certain  sections  which  shall  be  open  to  certain  amendments. 
Finally,  it  may  substitute  one  measure  for  another,  combine 
several  measures,  or  prepare  what  is  practically  a  new  measure, 
on  which  the  House  must  vote  at  a  designated  time.  The  com- 
mittee, moreover,  may  conduct  preliminary  investigations  pre- 
paratory to  reporting  a  special  rule  to  the  House.  It  was  before 
the  Committee  on  Rules  that  the  question  of  the  "  leak  "  of  the 
president's  message  was  investigated  because  of  Mr.  Lawson's 
sensational  charges  in  1916. 

As  has  been  seen,  it  was  the  custom  of  the  Republicans  to 
vest  this  power  in  a  small  committee  appointed  by  the  Speaker, 
who  was  himself  a  member.  This,  with  the  Speaker's  appoint- 
ment of  the  other  committees  and  his  power  of  recognition, 
tended  to  make  him  all-powerful  in  the  matter  of  legislation. 
In  March,  1911,  a  combination  of  dissatisfied  Republicans  and 
Democrats  altered  this  custom.  The  Committee  on  Rules  is 
now  elected  by  the  House,  and  the  Speaker  is  no  longer  a 
member.  The  number,  moreover,  is  increased  from  five  to  ten, 
four  from  the  minority  and  six  from  the  majority;  but  the 
powers  and  functions  of  the  committee  are  still  the  same,  and 
thus  it  still  has  the  power  to  direct  the  procedure  and  the  form 
of  legislation  —  in  other  words,  it  is  still  the  steering  committee 
of  the  House. 

Since,  however,  the  members  are  no  longer  appointed  by  the 
Speaker,  their  election  depends  upon  the~  action  of  the  Com-  \ 
mittee  on  Committees,  and  the  majority  of  the  caucus.    Thus  j 
the  party  as  a  whole  is,  formally  at  least,  consulted.    Moreover,  I 
since  the  development  of  the  powers  of  the  floor  leader,  powers 
dependent  largely  upon  his  personal  ascendancy  and  influence 
over  the   House,   the   Committee   on   Rules   cannot  afford  to  ' 


CONGRESS  AT  WORK  331 


antagonize  him.  The  net  result  of  the  changes  since  1911, 
therefore,  has  been  to  divide  the  power  of  the  Speaker  into 
three  parts :  one,  and  that  the  smallest,  is  retained  by  the 
Speaker ;  a  second,  and  perhaps  the  largest  and  most  constantly 
used,  is  given  to  the  floor  leader ;  while  a  third,  and  that  of  final 
authority,  is  wielded  by  the  Committee  on  Rules. 

The  Committee  on  Rules  in  the  Senate  has  no  such  functions  The  commit- 
as  has  the  House  Committee.    Special  rules  are  unknown,  and  J^the  senate 
the  rules  committee  of  the  Senate  is  charged  with  preparing 
amendments  to  the  existing  rules,  which  shall  be  of  a  permanent 
nature.    The  so-called  steering  committee  of  the  Senate  is  an 
informal  conference  between  influential  leaders  who  agree  among 
themselves  what  shall  be  done,  but  who  have  no  such  parliamentary 
status  as  the  rules  committee  of  the  House. 


CHAPTER  XIII 


The  senate 
assembly™' 


The  House  of 


°f  Tress 


CONGRESS  AT  WORK  (CONTINUED) 
THE  ORGANIZATION  OF  CONGRESS 

When  Congress  assembles  either  in  extraordinary  session  or 
at  the  regularly  appointed  date,  the  Senate  is  a  fully  organized 
body,  while  the  House  is  not.  By  the  Constitution  the  terms 
of  one  third  of  the  senators  expire  every  two  years,  so  that  there 
is  always  a  majority  of  the  senators  in  office,  a  quorum,  capable 
of  doing  business.  The  vice  president,  moreover,  is  the  presiding 
officer,  and  holds  his  position  independently  of  senatorial  elec- 
tion ;  hence,  except  in  very  rare  instances  of  disputed  presidential 
elections,  there  is  no  question  of  organization  before  the  Senate. 

It  is  quite  otherwise  with  the  House.  At  the  end  of  each 
Congress  the  terms  of  all  the  members  and  officers  expire.  The 
Present  House  cannot  bind  or  prescribe  the  organization  of  the 
succeeding  House.  Only  the  Constitution  or  a  statute  can  do 
that.  As  a  result,  on  the  assembling  of  Congress  the  House 
presents  the  curious  spectacle  of  over  four  hundred  members 
elect,  having  no  legally  recognized  status  and  no  organization. 
By  precedent  and  rule,  which  has  no  legal  force,  the  clerk  of 
the  preceding  .Congress  prepares  a  temporary  roll  from  the 
credentials  of  the  members  elect.  In  so  doing  he  may  leave 
off  from  the  roll,  because  of  contests  or  faulty  credentials,  a 
sufficient  number  to  alter  the  party  strength  of  the  House. 
This  was  done  in  1839  when  the  clerk,  Hugh  A.  Garland,  left 
off  of  the  roll  all  the  contestants  from  New  Jersey,  explain- 
ing that  he  had  no  authority  to  settle  contests.  By  so  doing 
he  enabled  his  party  to  elect  its  candidate  for  Speaker  and 
himself  as  clerk.1 

1  De  A.  S.  Alexander,  History  and  Procedure  of  the  House  of  Representa- 
tives, pp.  14-18. 

332 


CONGRESS  AT  WORK  333 


f  the  temporary  roll  call  shows  the  presence  of  a  quorum,  Process  of 
the  clerk  announces  that  the  next  business  is  the  election  of  a 
Speaker.  The  election  of  a  Speaker  by  a  party  is  generally 
taken  as  evidence  that  the  successful  party  controls  the  organi- 
zation of  the  House.  Usually  the  other  officers,  the  clerk, 
sergeant  at  arms,  and  the  doorkeeper,  postmaster,  and  chaplain, 
are  chosen  by  the  adoption  of  »a  resolution  declaring  that  the 
candidates  named  therein  are  elected  to  the  respective  offices. 
But  in(the  6 5th  Congress,  when  the  parties  were  almost  evenly 
balanced,  the  floor  leader  of  the  Republicans  demanded  a  special 
vote  upon  the  election  of  each-  officer  except  the  chaplain, 
claiming  that  the  Democrats  did  not  have  an  actual  majority. 

After  the  Speaker  is  seated  and  has  taken  the  oath,  he  ad-  contested 
ministers  it  to  the  members  elect.   Whenever  objection  is  made  e 
to  any  member's  taking  the  oath,  the  Speaker  refuses  to  admin- 
ister it  to  that  member  without  further  action  of  the  House.   In 
the  case  of  a  contested  election  the  case  is  referred  to  one  of  the 
Committees  on  Contested  Elections,  or  if  some  other  objection 
is  offered,  to  a  special  committee. 

THE  RULES  OF  THE  HOUSE  OF  REPRESENTATIVES 

So  far  the  House  has  been  proceeding  under  the  rather  plas-  The  rules  are 
tic  code  of  what  is  known  as  general  parliamentary  procedure, 
The  next  and  very  important  step  is  the  adoption  of  the  rules. 
Speaker  Reed,  however,  in  the  5ist  Congress,  1889,  postponed 
the  adoption  of  the  rules  until  the  contested  election  cases  had 
been  decided  and  his  own  party  had  a  safe  majority.  Ordinarily, 
however,  the  rules  of  the  preceding  Congress  are  adopted,  and 
the  House  proceeds  to  further  organization.  The  next  step  is 
the  appointment  of  committees.  Previous  to  1911  these  were 
named  by  the  Speaker  within  a  few  days  or  at  once,  but  in  1909 
(6 1  st  Congress)  Speaker  Cannon  named  only  the  most  necessary 
committees  and  delayed  further  appointments  until  the  passage 
of  the  tariff  bill.  In  so  doing  he  put  the  members  of  the  majority 
upon  their  good  behavior,  to  be  rewarded  by  good  committee  as- 
signments or  punished  by  unimportant  ones.  Since  1911  the  com- 
mittees have  been  elected  by  the  adoption  of  resolutions  from 
each  party  caucus  presented  usually  by  the  respective  floor  leaders. 


The  rules  are 
complicated, 
the  principles 
simple,  and 
the  results 
make  the 
House  a  body 
to  register 
the  decisions 
of  its  leaders 


The  develop- 
ment of  the 
rules  insures 
the  rule  of 
the  majority 


(i)  Consid- 
eration 


334    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  rules  and  precedents  of  the  House  of  Representatives  are 
extremely  complicated  and  technical  and  are  understood  fully  by 
only  a  few  expert  parliamentarians.  The  principles  and  purposes 
underlying  the  rules,  however,  are  exceedingly  simple,  and  direct. 
Briefly  the  rules  make  it  possible  that  the  majority  shall  have  it 
in  its  power  to  write  its  will  in  legislation  without  undue  delay 
by  the  minority.  At  the  same  time  certain  constitutional  rights 
are  preserved  to  the  minority  and  certain  opportunities  for  criti- 
cism allowed.  Nevertheless,  the  development  of  the  party  system, 
the  steady  increase  of  the  size  of  the  House,  and  the  enormous 
growth  of  business  have  brought  about  two  things  :  more  and 
more  authority  is  exercised  by  the  majority,  and  this  authority  is 
closely  vested  in  a  small  body  of  leaders ;  and  debate  has  been 
so  limited  and  opposition  so  stifled  that  it  has  been  said  that  the 
House  has  ceased  to  be  a  legislative  body  and  has  become  a  body 
for  the  registration  of  the  decisions  of  the  leaders. 

Originally,  when  the  membership  of  the  Hoilse  was  small  and 
mutual  forbearance  and  courtesy  prevailed  between  the  members, 
procedure  was  simple  and  the  rules  were  few;  But  this  condi- 
tion did  not  last  long.  The  majority  found  it  necessary  to  curb 
the  undefined  rights  of  the  minority  in  order  to  make  sure  of 
the  adoption  of  its  policy.  The  whole  history  of  the  evolution 
of  the  present  system  of  rules  and  the  effect  of  their  chief  revi- 
sions in  1860,  1880,  and  1889  has  been  to  make  sure  that  the 
minority  could  always  and  at  once  be  made  subject  to  the  majority, 
and  that  the  majority  could  always  bring  its  desired  measure  to 
vote.  This  was  finally  accomplished  by  the  Reed  rules  in  1889, 
and  since  that  time  there  has  been  no  successful  instance  of 
long  delay  or  obstruction  by  the  minority.  The  majority  rules 
by  the  rules. 

To  accomplish  this,  three  principles  have  been  adopted.  The 
majority  is  given  power  (i)  to  decide  what  business  shall  be  con- 
sidered, (2)  to  determine  in  what  order  it  shall  be  considered, 
and  (3)  to  prevent  obstruction  and  delay. 

The  first  protection  which  the  majority  has  is  the  question  of 
consideration.  Rule  XVI,  Sect.  3,  provides  that  "  When  any 
motion  or  proposition  is  made,  the  question,  Will  the  House  con- 
sider it?  shall  not  be  put  unless  demanded  by  a  member." 


CONGRESS  AT  WORK  335 


Negatively  this  gives  the  opportunity  to  the  House  to  determine 
whether  it  wishes  to  consider  any  question  at  any  time.  But  the 
rules  also  exempt  certain  classes  of  questions  concerning  which 
the  question  of  consideration  may  not  be  raised.  These  excep- 
tions fall  into  two  classes.  The  first  relate  to  the  order  established 
by  the  majority.  Thus  the  question  of  consideration  may  not  be 
raised  against  a  class  of  business  that  is  in  order  under  some 
special  rule,  or  against  a  motion  relating  to  the  order  of  business, 
or  upon  a  proposition  before  the  House  for  reference  merely. 
On  the  other  hand,  it  may  not  be  raised  concerning  a  bill  returned 
with  the  president's  objections,  nor  upon  a  motion  to  discharge  a 
committee.  Thus  the  majority  may  determine  at  any  time  what 
business  the  House  shall  consider  even  to  the  extent  of  displacing 
the  business  established  by  the  regular  rules. 

The  normal  order  of  business  as  prescribed  by  the  rules  is  (a)  order  of 
(i)  prayer  by  the  chaplain,  (2)  reading  and  approval  of  the 
journal,  (3)  correction  of  reference  of  public  bills,  (4)  disposal 
of  business  on  the  Speaker's  table,  (5)  unfinished  business, 
(6)  morning  hour  for  the  consideration  of  bills  called  up  by  com- 
mittees, (7)  motions  to  go  into  the  Committee  of  the  Whole 
House  on  the  State  of  the  Union,  (8)  orders  of  the  day.1  Fur- 
thermore, the  business  of  the  House  is  classified  and  assigned 
to  certain  calendars  or  lists  or  measures,  namely :  (i)  the  Union  [The  caien- 
Calendar,  on  which  are  all  public  bills  relating  to  the  raising 
or  spending  of  money ;  (2)  the  House  Calendar,  on  which  are 
all  other  public  bills  ;  (3)  the  Private  Calendar,  on  which  are  all 
bills  not  of  a  public  nature  ;  (4)  the  Calendar  for  Unanimous  Con- 
sent, on  which  ma"y  be  put  any  measure  which  has  been  favorably 
reported  and  is  on  the  House  or  Union  Calendar  (objection 
to  consideration  removes  the  bill  from  this  calendar  and  restores 
it  to  its  former  place)  ;  (5)  a  calendar  of  motions  to  discharge 
committees  from  the  consideration  of  certain  bills. 

Moreover,  the  House  has  assigned  certain  classes  of  business   [certain 
to  certain  days.    The  second  and  fourth  Mondays  of  each  month  business 
are  set  aside  for  consideration  of  the  business  of  the  District  of  certfin^ays 
Columbia,  of  which  Congress  is  the  local  legislature.    The  first 
and  third  Mondays  are  suspension  days,  when  it  is  in  order  to 

1  Rule  XXIV,  Sect.  i. 


to  certain 
classes  of 
business] 

[Privileged 
questions] 


336    THE  GOVERNMENT  OF  THE  UNITED  STATES 

move  that  the  rules  be  suspended,  and  a  measure  passed  through 
all  stages  at  one  vote.  On  these  days  the  Calendar  for  Unani- 
mous Consent  is  called.  It  requires  a  two-thirds  majority,  how- 
ever, to  suspend  the  rules.  On  Wednesday  of  each  week  the 
House  and  Union  Calendars  are  called,  and  each  committee  in 
turn  may  present  its  measure  for  consideration.  Holy  Wednesday, 
as  it  is  called,  is  protected  from  the  encroachment  of  the  rules 
committee  by  the  provision  that  it  cannot  be  taken  for  any  other 
purpose  except  by  a  two-thirds  vote.  Every  Friday  is  set  aside 
for  consideration  of  private  business  on  the  Private  Calendar. 
Thus  on  Tuesdays,  Thursdays,  and  Saturdays  the  regular  order 
established  by  the  rules  is  followed. 

[Priority given  But  the  House  has  gone  even  further  and  has  given  priority 
to  certain  classes  of  business.  These  are  known  as  privileged 
matters.1  These  questions  have  precedence  over  all  matters 
except  a  question  to  adjourn.  Privileged  questions  relate  to  the 
order  of  business,  but  certain  matters  of  business  arising  under 
the  Constitution  which-  are  mandatory  in  their  nature  have  been 
held  to  have  a  privilege  which  supersedes  the  rules  establishing 
the  order  of  business  ;  for  example,  bills  providing  for  the  census 
and  apportionment,  a  bill  returned  with  objections  of  the  presi- 
dent, propositions  for  impeachment,  resolutions  for  adjournment 
and  recess  of  Congress.  The  ordinary  rules  and  functions  of  the 
House  under  the  Constitution  are  exercised  in  accordance  with 
the  rules  without  precedence  as  matters  of  privilege.2  These 
privileged  questions  are  reports,  which  may  be  presented  at  any 
time  for  certain  specified  committees  on  specified  matters.3  At 

1  A  distinction  is  made  between  questions  of  privilege  which  relate  (i)  to  the 
House  iri  its  entirety,  its  safety,  dignity,  and  the  integrity  of  its  proceedings 
and  (2)  to  the  rights  and  reputations  of  the  members  in  their  representative 
capacity  only. 

2  House  Manual,  p.  656. 

8  The  following  committees  and  matters  are  privileged:  (i)  Rules,  on  rules, 
joint  rules,  and  order  of  business ;  (2)  Elections,  on  the  right  of  a  member  to 
his  seat ;  (3)  Ways  and  Means,  on  raising  revenue ;  the  following  committees 
having  jurisdiction  of  appropriations  when  they  report  a  general  appropriation 
bill:  (4)  Appropriations,  (5)  Rivers  and  Harbors,  (6)  Agriculture,  (7)  Foreign 
Affairs,  (8)  Military  Affairs,  (9)  Naval  Affairs,  (10)  Post  Office,  (n)  Indian 
Affairs,  (12)  Claims,  (13)  War  Claims,  (14)  Accounts;  (15)  Public  Lands,  on  bills 
for  the  forfeiture  of  land  grants  to  railroads  and  other  corporations,  bills  pre- 
venting speculation  in  public  lands,  and  bills  for  the  reservation  of  public  lands ; 


CONGRESS  AT  WORK  337 


any  time  after  the  reading  of  the  journal  it  shall  be  in  order,  by 
the  direction  of  the  appropriate  committees,  to  move  that  the 
House  resolve  itself  into  the  Committee  of  the  Whole  House  on 
the  State  of  the  Union  for  the  purpose  of  considering  bills  for 
raising  revenue  or  general  appropriation  bills,1  while  the  pres- 
entation of  conference  reports  shall  always  be  in  order,  except  [conference 
while  the  journal  is  being  read  or  the  roll  called  or  the  House  reports] 
dividing  on  any  proposition.2  So  long  has  the  list  of  privileged 
committees  and  questions  become  that  the  right  would  carry 
little  weight  if  the  right  to  report  did  not  carry  with  it  the  right 
of  consideration.  While  these  privileged  questions  interrupt  the 
established  order  of  business,  they  may  do  so  only  with  the  assent 
of  the  majority. 

Just  as  it  is  the  business  of  the  majority  to  legislate,  so  it  is  (3)  obstruc- 
the  duty  of  the  minority  to  force  the  majority  to  answer  criticism 
and  to  perfect  its  legislation.  Indeed,  this  is  the  purpose  of  de- 
bate and  amendment.  Inasmuch  as  the  minority  is  generally 
opposed  in  theory  and  practice  to  the  majority,  it  is  rarely  if 
ever  convinced  by  the  arguments  presented.  At  a  certain  time 
the  majority  answers  criticism  and  objections  not  by  arguments 
but  by  votes.  When  should  this  time  arise  ?  Theoretically,  per- 
haps, when  every  member  has  had  an  opportunity  to  express  his 
opinions  and  to  offer  suggestions  and  amendments.  If  such  were 
the  custom,  little  would  be  accomplished  even  if  only  sincere  argu- 
ments and  amendments  were  offered.  But  actually  the  minority 
is  not  always  sincere  in  its  suggestions  and  argument.  It  is  sin- 
cere in  that  it  may  believe  that  it  is  its  patriotic  duty  to  prevent 
the  majority  from  legislating,  but  many  of  its  objections  and 
suggestions  are  means  to  an  end,  designed  to  obstruct  and  delay 
the  final  expression  of  the  will  of  the  majority.  Obstruction, 
as  this  is  called,  generally  takes  the  form  of  long  speeches, 
frequent  amendments,  dilatory  motions,  and  finally  attempts  to 
break  the  quorum  without  which  the  majority  can  do  nothing. 

(16)  Territories,  for  the  admission  of  new  states  ;  (17)  Enrolled  bills  ;  (18)  Invalid 
pensions,  for  general  pension  bills;  (19)  Printing,  on  matters 'referred  to  it  for 
the  use  of  the  House  or  the  two  Houses ;  (20)  Accounts,  on  all  matters  of 
expenditure  of  the  contingent  fund.  —  House  Manual,  Rule  XI,  Sect.  56 

1  Rule  XVI,  Sect.  9. 

2  Rule  XXVIII,  Sect.  I. 


338    THE  GOVERNMENT  OF  THE  UNITED  STATES 

To  meet  these  the  rules  provide  that  debate  shall  be  limited, 
that  the  previous  question  may  be  ordered,  that  the  Speaker  shall 
not  entertain  dilatory  motions,  and  that  he  may  count  the  physical 
presence  of  the  members  instead  of  depending  upon  the  roll  call 
to  disclose  a  quorum.  Each  of  these  methods  has  been  adopted 
as  the  result  of  a  struggle,  and  each  has  had  far-reaching  effects. 

Debate  in  the  House  is  limited  to  one  hour  for  each  person 
who  obtains  the  floor.  This  provision  was  adopted  in  1841  to 
prevent  the  waste  of  time  through  unending  speeches.  It  was 
not  uncommon  for  members  to  speak  for  four  or  five  hours,  and 
Clay  asserted  that  one  member  spoke  for  twenty-four  hours  with- 
out stopping.1  When  the  House  goes  into  the  Committee  of  the 
Whole,  debate  is  limited  to  five  minutes  for  each  amendment 
proposed,  or  upon  a  motion  debate  may  be  closed  upon  any 
section  or  series  of  sections. 

Although  the  rule  in  regard  to  the  previous  question  was 
adopted  in  1789,  it  was  not  used  to  limit  debate  until  1841,  and 
in  its  present  form  and  operation  it  is  the  result  of  a  series  of 
rules  and  interpretations.  To-day  any  member  may  move  the 
previous  question,  which,  upon  being  adopted  by  a  majority  of 
the  members  voting,  a  quorum  being  present,  has  the  effect  of 
cutting  off  all  debate  and  bringing  the  House  to  a  direct  vote 
upon  the  immediate  question  on  which  it  was  asked.2  In  order 
to  prevent  the  complete  stifling  of  debate  and  to  give  some 
slight  opportunity  for  discussion,  the  rules  provide  that  when 
the  previous  question  is  ordered  there  shall  be  allowed  forty 
minutes  for  debate,  provided  no  debate  has  taken  place.  More- 
over, after  the  previous  question  is  ordered,  the  Speaker  may 
entertain  one  motion  to  commit  to  a  standing  committee,  with 
or  without  instructions,  the  matter  upon  which  the  previous 
question  has  been  ordered. 

The  effect  of  the  previous  question  is  more  than  to  cut  off 
all  debate.  It  stops  that,  it  is  true,  and  forces  the  House  to 
vote  upon  the  question.  But  it  goes  further  and  cuts  off  the 
possibility  of  amendment.  -When  once  ordered,  the  measure  as 
it  stands  with  the  pending  amendments,  but  without  further 

1  Annals  of  Congress,  p.  699,  i4th  Cong.,  ist  Sess. 

2  Rule  XVII,  Sect.  i. 


CONGRESS  AT  WORK  339 


change,  must  be  voted  upon.  It  therefore  behooves  the  majority 
to  be  very  certain  that  the  matter  shall  be  in  such  form  as  will 
be  acceptable  to  them. 

Motions  are  often  made  for  the  express  purpose  of  consuming  Dilatory 
time  and  causing  delay.  A  motion  to  adjourn,  to  take  a  recess, 
to  postpone  to  a  certain  time,  if  entertained  by  the  Speaker, 
must  be  put  to  vote.  If  ordered  by  a  fifth  of  a  quorum,  tellers 
have  to  be  appointed,  and  if  demanded  by  one  fifth  of  those 
present,  a  yea-and-nay  vote  has  to  be  taken  and  entered  in  the  Yea  and  nay 
journal.  As  it  takes  more  than  forty  minutes  to  call  the  roll  of 
the  House  and  correct  the  vote,  and  as  every  motion,  no  matter 
how  dilatory,  is  subject  to  an  amendment  upon  which  the  yeas 
and  nays  may  be  ordered,  the  process  is  endless.  At  one  stage 
of  the  50th  Congress  the  House  remained  in  session  eight  days 
and  nights  and  over  one  hundred  roll  calls  were  taken.  This 
continued  until  1 890,  when  Speaker  Reed,  in  one  of  his  historic 
rulings,  refused  to  entertain  a  dilatory  motion. 

On  January  31  the  Democrats,  bent  on  delay,  were  using 
every  possible  means  to  postpone  the  approval  of  the  journal. 
At  last,  the  previous  question  having  been  ordered,  the  Speaker 
put  the  question  on  the  approval  of  the  journal,  whereupon  for 
the  fourth  time  a  motion  to  adjourn  was  made.  The  Speaker 
continued  to  count  the  vote,  and  this  colloquy  took  place : 

MR.  SPRINGER  (while  the  Speaker  proceeded  with  the  count  of 
those  rising).  Mr.  Speaker,  do  you  decline  to  entertain  the  motion 
to  adjourn  ? 

THE  SPEAKER.  A  sufficient  number  have  risen.  The  yeas  and  nays 
are  ordered.  The  clerk  will  call  the  roll. 

MR.  SPRINGER  (after  the  roll  call  had  begun).  Well,  this  is  tyranny, 
simple  and  undiluted. 

MR.  BLAND  (speaking  amid  great  confusion  and  cries  of  "  Order!"). 
This  is  an  outrage.  The  House  could  not  be  in  a  more  demoralized 
condition  than  the  Speaker  of  this  House. 

[The  Speaker  then  announced  the  result  of  the  vote,  and  after  the  The  ruling  of 
House  had  listened  to  a  violent  attack  upon  the  Speaker,  Mr.  Springer  oblatory6 
again  moved  to  adjourn.     The  Speaker  ruled  the  motion  out  of  order  motions 
and  refused  to  entertain  an  appeal  from  his  decision.    He  sustained  this 
epoch-making  ruling  as  follows:]  "There  is  no  possible  way  by  which 
the  orderly  methods  of  parliamentary  procedure  can  be  used  to  stop 


340    THE  GOVERNMENT  OF  THE  UNITED  STATES 

legislation.  The  object  of  a  parliamentary  body  is  action,  and  not 
stoppage  of  action.  Hence,  if  any  member  or  set  of  members  under- 
takes to  oppose  the  orderly  progress  of  business,  even  by  the  use  of 
the  ordinarily  recognized  parliamentary  motions,  it  is  the  right  of  the 
majority  to  refuse  to  have  those  motions  entertained,  and  to  cause 
public  business  to  proceed.  .  .  .  Whenever  it  becomes  apparent  that 
the  ordinary  and  proper  parliamentary  motions  are  being  used  solely 
for  the  purpose  of  delay  and  obstruction,  ...  it  is  then  the  duty  of  the 
occupant  of  the  Speaker's  chair  to  take,  under  parliamentary  law,  the 
proper  course  with  regard  to  such  matters.  ..." 

From  this  decision  Mr.  Springer  appealed,  but  the  House 
sustained  the  Speaker  by  laying  the  appeal  upon  the  table.1  Sub- 
sequently after  the  contested  election  cases  were  disposed  of,  the 
Committee  on  Rules  brought  a  rule  which  read,  "  No  dilatory 
motion  shall  be  entertained  by  the  Speaker."  2 

Practice  of  In  enforcing  this  rule  Speakers  have  held  that  the  object  of  the 

en7oarcingnthe  dilatory  motion  must  be  apparent  to  the  House,  and  thus,  usually, 
although  by  no  means  always,  they  wait  until  a  point  of  order 
has  been  made  from  the  floor  that  the  motion  is  dilatory.  This 
rule  has  been  applied  to  motions  to  adjourn,  to  reconsider,  to  the 
question  of  consideration,  to  a  point  of  order  or  of  no  quorum, 
and  to  the  demand  for  tellers,  but  the  constitutional  right  of  the 
members  to  demand  the  yeas  and  nays  cannot  be  overruled. 
counting  a  Since  the  Constitution  requires  the  presence  of  a  majority  of 
the  members  of  each  House  in  order  to  do  business,  one  of  the 
commonest  methods  of  obstruction  was  to  break  a  quorum.  This 
might  be  done  by  members  physically  absenting  themselves.  But 
since  each  House  could  compel  the  attendance  of  its  members, 
a  simpler  and  more  efficacious  method  was  discovered.  From 
the  organization  of  the  government  the  presence  of  a  quorum 
was  determined  by  a  roll  call,  and  it  was  held  that,  unless  a 
yea-and-nay  vote  disclosed  a  majority  voting,  a  quorum  was  not 
present.  Thus  members  might  answer  to  their  names  upon  a 
roll  call,  but  refuse  to  vote  upon  the  call  for  yeas  and  nays, 
thereby  forcing  the  majority  to  move  another  call  of  the  House 
to  which  they  would  answer,  only  to  sit  silent  again.  Therefore, 


Congressional  Record,  January 
Rule  XVI,  Sect.  10. 


1,  1800,  pp.  008-1001 


CONGRESS  AT  WORK  341 

unless  the  majority  had  always  present  a  majority  of  the  House, 
it  was  in  the  power  of  the  minority  to  block  or  defeat  all  action. 

In  1875  it  was  urged  that  the  Speaker  record  as  present  those  Attempts  to 
who  were  announced  as  present  by  another  member  rising  and  a 
announcing  the  presence  of  a  member  and  asking  that  his 
name  be  recorded.  But  Speaker  Blaine  declined  to  do  this. 
In  1890,  however,  Speaker  Reed  solved  the  difficulty.  Upon  a 
question  of  the  consideration  of  a  contested  election  case  the 
vote  stood  ayes,  161 ;  nays,  2  ;  not  voting,  163.  A  quorum,  there- 
fore, was  not  disclosed  by  the  vote,  and  Mr.  Crisp  made  the 
point  of  order  that  no  quorum  was  present.  The  Speaker  directed 
the  clerk  to  record  as  present  but  not  voting  the  names  of  cer- 
tain members  he  saw  present,  thereby  establishing  the  record  of 
a  quorum.1  He  sustained  his  ruling  by  a  lengthy  opinion,  hold- 
ing that  it  was  the  presence  of  the  members,  not  their  performing 
certain  functions,  which  established  a  quorum,  and  in  it  he  said : 

It  is  a  question  that  is  a  determination  of  the  actual  presence  of  a  The  ruling  of 
quorum,  and  the  determination  of  that  is  intrusted  to  the  presiding  ^cunting6*1 
officer  in  almost  all  instances.    Again,  .  .  .  there  is  a  provision  in  the  a  quorum 
Constitution  which  declares  that  the  House  may  establish  rules  for 
compelling  the  attendance  of  members.    If  members  can  be  present  and 
refuse  to  exercise  their  function,  to  wit,  not  be  counted  as  a  quorum, 
that  provision  would  seem  to  be  nugatory.    Inasmuch  as  the  Constitu- 
tion only  provides  for  their  attendance,  that  attendance  is  enough.    If 
more  were  needed,  the  Constitution  would  have  provided  more.2 

At  the  next  session  of  Congress  the  Democrats,  who  obtained  Present 
a  majority,  reversed  Mr.  Reed's  ruling.    Thereupon  Mr.  Reed  p 
and  the   Republicans  under  him  refrained  from  voting  until, 
after  weeks  of  helplessness,  the  Democrats  were  forced  to  adopt 
a  modification,  by  which  tellers,  instead  of  the  Speaker,  counted 
the  members  present  but  not  voting.    This  ruling  combined  with 
the  rule  which  forbade  the  Speaker  to  entertain  dilatory  motions 
effectually  muzzled  most  of  the  obstructive  tactics  of  the  minority. 

One  further  method  of  obstruction  lies  in  the  constitutional    Yea  and  nay 
prerogative  which  allows  one  fifth  of  those  present  to  demand 
the  yeas  and  nays  upon  every  question.    This  was  the  method 

1  Congressional  Record,  January  29,  1890,  p.  949.  2  Ibid.  p.  950. 


Met  by  a 
temporary 
resolution  of 
the  Commit- 
tee on  Rules 


342    THE  GOVERNMENT  OF  THE  UNITED  STATES 

of  filibustering  inaugurated  by  John  Sharp  Williams  in  1908. 
His  avowed  purpose  was  not  to  prevent  legislation  but  to  compel 
the  Republicans  to  pass  certain  measures.1  To  attract  the  atten- 
tion of  the  country  by  the  delay  he  caused  in  legislation, 
Williams  announced  that  he  would  refuse  all  requests  for  unan- 
imous consent,  and  that  he  would  demand  roll  calls  on  every 
possible  occasion.  To  meet  this  the  Republican  Committee  on 
Rules  brought  in  the  following  rule,  which  well  illustrates  the 
power  of  that  committee : 

Resolved,  That  upon  the  adoption  of  this  rule,  and  at  any  time 
thereafter  during  the  remainder  of  this  session,  it  shall  be  in  order  to 
take  from  the  Speaker's  table  any  general  appropriation  bill  returned 
with  Senate  amendments,  and  such  amendments  having  been  read, 
the  question  shall  be  at  once  taken  without  debate  or  intervening 
motion  of  the  following  question :  "  Will  the  House  disagree  to  said 
amendments  en  bloc  and  ask  a  conference  with  the  Senate  ? "  And  if 
this  motion  shall  be  decided  in  the  affirmative,  the  Speaker  shall  at 
once  appoint  the  conferees,  without  the  intervention  of  any  motion. 
If  the  House  shall  decide  said  motion  in  the  negative,  the  effect  of 
said  vote  shall  be  to  agree  to  the  said  amendments. 

And  further,  for  the  remainder  of  this  session,  the  motion  to  take  a 
recess  shall  be  a  privileged  motion,  taking  precedence  of  the  motion  to 
adjourn,  and  shall  be  decided  without  debate  or  amendment. 

And  further,  during  the  remainder  of  this  session,  it  shall  be  in 
order  to  close  debate  by  motion  in  the  House  before  going  into  Com- 
mittee of  the  Whole,  which  motion  shall  not  be  subject  to  either 
amendment  or  debate.2 

This  greatly  reduced  the  number  of  roll  calls  but  by  no  means 
eliminated  them.  It  not  only  effectually  muzzled  the  minority 
but  compelled  the  majority  blindly  to  follow  the  direction  of  the 
leaders.  The  episode  is  instructive,  however,  in  showing  how 
the  size  of  the  House  and  the  possibility  of  obstruction  force  the 
House  to  become  less  and  less  a  body  for  consideration  and  more 
and  more  a  body  to  register  the  wishes  of  the  leaders  it  follows. 

1  These  measures  were  progressive  or  radical  in  their  nature  and  quite 
unacceptable  to  the  leaders  of  the  House,  although  desired  by  a  number  of 
Republicans.  They  included  employers'  liability  bill,  publicity  for  campaign 
contributions,  free  wood  pulp  for  printing  paper,  a  bill  preventing  ex  parte 
injunctions.  2  Congressional  Record,  April  4,  1908,  p.  4368. 


CONGRESS  AT  WORK  343 

THE  RULES  OF  THE  SENATE 

The  Senate  being  a  continuous  body  does  not  adopt  its  rules  Rules  of    . 
with  each    Congress.    The  rules  and  standing  orders  are  con-  permanent 
tinued  from  one  session  to  another  with  little  or  no  change  and 
with  but  few  amendments.    In  general,  with  certain  technical 
differences  of  interest  chiefly  to  senators  or  to  students  of  par- 
liamentary  procedure,  the  rules  provide  for  the  transaction   of 
business  in  a  method  somewhat  similar  to  that  followed  by  the 
House.    In  two  important  particulars  there  are  vast  differences. 
In  the  first  place  there  is  no  privileged  business  in  the  Senate. 
Thus  to  proceed  with  a  measure  to  the  exclusion  of  others  upon 
the  calendar,  it  requires  unanimous  consent  or  a  motion  carried  unanimous 
by  the   majority.    The  second  difference,  and   this  is  of  vital 
importance,  is  that  until  1917  the  Senate  had  no  method  of  deal-  NO  adequate 
ing  with  obstruction.    There  is  no  limit  to  the  length  of  time  a  dealing  with 
senator  may  occupy,  and  no  use  of  the  previous  question  as  it  obstructions 
is  employed  in  the  House.  Hence  it  is  possible  for  a  minority  to 
thwart  the  desire  of  the  majority,  and  by  continuous  talking  to 
prevent  the  passage  of  any  measure.  Thus,  shortly  after  the  Civil 
War  a  minority  succeeded  in  defeating  the  passage  of  the  Force 
Bill,  and  in  1917  the  six  "willful  men"  prevented  the  passage 
of  the  bill  to  allow  the  arming  of  merchantmen  —  a  measure 
President  Wilson  strongly  desired. 

As  a  result  of  these  rules,  or  rather  the  absence  of  rules,  much 
of  the  business  of  the  Senate  is  transacted  under  unanimous 
consent  agreements,  and  by  mutual  forbearance  of  objections. 
Since  every  senator  will  be  forced  at  times  to  ask  favors,  he  is 
careful  not  to  deny  them  to  others,  and  much  of  the  legislation 
goes  through  without  open  criticism  and  objection.  With  great 
party  measures  it  is  different.  Here  the  party  by  sheer  force  of 
votes  may  obtain  the  consideration  of  a  measure  ;  but  once  under 
consideration  no  senator  or  group  of  senators  can  check  the 
debate.  Time  and  fatigue  alonp  will  do  that.  Generally,  how- 
ever, unless  an  avowed  "filibuster"  is  under  way,  the  minority,  "Filibuster" 
after  delay  sufficient  to  call  the  attention  of  their  constituents 
and  of  the  country  at  large  to  the  measure,  will  agree  to  fix  some 
date  at  which  the  vote  may  be  taken.  The  preparation  and 


Present 
method  of 
dealing  with 
obstruction 


344    THE  GOVERNMENT  OF  THE  UNITED  STATES 

wording  of  this  agreement  are  matters  of  long  consultation  and  dis- 
cussion, but  once  made  are  scrupulously  observed.  If,  however, 
the  session  is  drawing  to  a  close  and  the  minority  sees  personal  or 
party  advantage  in  defeating  the  measure,  requests  for  agreements 
are  refused  and  a  contest  of  physical  endurance  ensues.1 

After  the  exhibition  in  1917  the  Senate  adopted  a  very  mild 
form  of  closure.  Upon  petition  a  motion  may  be  made  to  fix  the 
time  for  closing  debate  upon  a  measure,  provided  that  two  days 
after  a  written  notice  by  sixteen  senators  closure  may  be  applied 
by  a  two-thirds  vote,  each  senator  being  limited  to  one  hour's 
debate  and  no  amendment  being  entertained  unless  by  unanimous 
consent.  Although  the  use  of  this  rule  has  three  times  been 
threatened,  it  has  never  been  applied.  In  1918  Senator  Under- 
wood introduced  an  amendment  to  this  rule  which  would  limit 
debate  to  not  more  than  one  hour  for  each  senator  upon  any 
bill  or  resolution,  and  not  more  than  twenty  minutes  on  each 
amendment.  After  long  and  extended  debate  the  amendment 
was  lost  by  a  nonpartisan  vote.2 

THE  COMMITTEE  SYSTEM 

Legislation  in  both  the  Senate  and  the  House  is  largely  in  the 
hands  of  committees.  At  the  first  session  of  the  first  Congress 
select  committees  were  appointed  to  consider  subjects  referred 
to  them.  The  most  important  of  these  was  the  Committee  on 
Ways  and  Means  in  the  House  and  the  Committee  on  Finance 
in  the  Senate.  To  these  committees  were  referred  all  proposals 
for  taxation  and  appropriation.  From  that  date  on  the  number 
of  the  committees  has  steadily  increased  with  the  growth  of 
business  until  there  are  about  sixty  committees  in  the  House 
and  seventy  in  the  Senate. 

In  the  House  the  most  important  committee  is  still  the  Com- 
mittee on  Ways  and  Means.    All  measures  involving  taxation   • 
are  referred  to  this  committee,  and  since  much  of  the  revenue 

1  Senator  Tillman  alone  and  single  handed  compelled  the  Senate  to  include 
i  appropriation  he  desired  by  threatening  to  continue  his  "remarks"  until 
ongress  should  expire  without  the  passage  of  necessary  appropriation  bills, 

thus  making  an  extra  session  of  Congress  necessary. 

2  Congressional  Record,  June  13,  1918,  Vol.  LVI,  No.  154,  p.  8356. 


CONGRESS  AT  WORK  345 

is  raised  by  the  tariff,  the  framing  of  the  great  tariff  bills  falls 
on  this  committee.  As  the  tariff  is  not  merely  a  financial  but 
above  all  a  political  and  party  measure,  the  committee  is  con- 
sidered of  great  political  importance,  and  its  chairman  is  the 
leader  of  the  House.1 

Originally  the  Committee  on  Ways  and  Means  recommended  The  commit- 
appropriations  as  well.    Thus  it  was  able  to  keep  some  connec- 


tion  between  the  amount  of  revenue  raised  and  the  amount  of  c2?g*<>?au 


money  appropriated.    In  1865  a  division  of  functions  was  made 

and  jurisdiction  over  appropriation,  banking  and  currency,  and 

Pacific  railroads  was   transferred  to   committees  bearing  these 

names.    The  vital  importance  of  this  change  was  that  the  power 

of  recommending  appropriations  was  vested  in  different  hands 

from  those  who  recommended  taxes.    Still  as  all  the  appropria- 

tions emanated  from  one   committee  some  harmony  was  pre- 

served.   The  Committee  on  Appropriations,  however,  kept  tight 

reign  upon  the  other  committees  and  was  very  slow  to  see  the 

merit  of  proposals  to  spend  money.    In  1867  the  chairman  of 

the   Committee   on   Commerce  (Reagan)  successfully  carried  a 

motion  to  suspend  the  rules  and  pass  a  river  and  harbor  bill 

without  reference  to  the  Committee  on  Appropriations.2   In  1885 

the  Committee  on  Appropriations  received  another  serious  blow 

when  five  other  committees  were  given  the  power  to  recommend 

appropriations.3  The  process  of  distributing  the  functions  of  this  The  commit- 

committee  has  continued  until  to-day  there  are  eleven  committees 

having  the  right  to  recommend  appropriations.    Politically  it  may 

have  been  wise  to  take  this  course,  but  financially  it  has  proved  with  eleven 

.  J  x  committees 

disastrous.  The  leaders  of  both  parties  cry  out  against  the  waste 
and  extravagance  and  suggest  the  return  to  a  single  appropria- 
ting committee.  So  strong  is  the  influence  of  the  chairmen  of 
the  other  committees  and  so  vital  the  desire  of  their  members  to 
share  in  appropriations,  that  reform  has  been  impossible  thus  far. 

1  In  1919  the  Republican  party  elected  a  floor  leader  other  than  the  chair- 
man of  the  Committee  on  Ways  and  Means.    It  is  of  obvious  advantage  to  have 
the  floor  leader  free  from  committee  work. 

2  This  bill  always  commands  wide  support,  as  almost  every  member  hopes  to 
have  some  of  the  government  work  done  in  his  district.    It  is  popularly  known 
as  the  "  Pork  Barrel." 

8  Committees    on  Foreign  Affairs,   Military  Affairs,  Naval  Affairs,  Indian 
Affairs,  and  Post  Office  and  Post  Roads. 


Military 
Affairs,  Naval 
Affairs,  Post 
Office,  Agri- 
culture 


Rivers  and 
Harbors 


Interstate 
Commerce 


Foreign 

Affairs 


346    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Of  the  other  important  committees  in  the  House,  those  on 
Military  Affairs  and  Naval  Affairs  handle  vast  sums  and  prepare 
far-reaching  legislation.  But  the  committee  which,  in  time  of 
peace,  handles  the  largest  appropriations  is  the  Committee  on 
Post  Office  and  Post  Roads.  Recently,  the  Committee  on  Agricul- 
ture, because  of  the  conservation  movement,  has  attracted  much 
public  attention ;  and  the  Committees  on  Rivers  and  Harbors 
and  on  Public  Buildings  distribute  large  amounts  of  "  pork  "  and 
have  earned  unenviable  notoriety  because  of  their  extravagance. 
The  Committee  on  Interstate  Commerce  has  jurisdiction  over 
the  Panama  Canal,  and,  of  more  importance  in  domestic  affairs, 
frames  the  various  food  bills  and  regulations  for  railroads  and 
industry.  The  Committee  on  Foreign  Affairs  usually  keeps  in 
close  touch  with  the  President  and  Secretary  of  State  and  con- 
siders and  prepares  resolutions  of  great  importance  :  the  declara- 
tion of  war  in  1917,  for  example,  and  the  McLemore  resolution 
in  1916,  the  passage  of  which  would  have  embarrassed  the  presi- 
dent seriously.  The  Judiciary  Committee  has  jurisdiction  relating 
to  judicial  procedure  and  to  the  courts  and  to  constitutional  amend- 
ments. During  Speaker  Cannon's  time  the  question  of  the 
constitutionality  of  a  measure  was  occasionally  referred  to  this 
committee.  As  the  committee  perfectly  reflected  Speaker  Cannon's 
conservative  theories,  reference  frequently  meant  the  death  of  a 
measure,  and  the  committee  was  known  as  "  Cannon's  Graveyard." 

One  other  important  committee  must  be  mentioned  although 
not  primarily  charged  with  legislation  —  the  Committee  on 
Rules.  This  committed  is  one  of  the  organs  by  which  party 
leadership  is  exercised.  Generally  this  is  done  through  report- 
ing some  change  in  procedure  which  will  accomplish  the  desired 
result,  but  occasionally  the  leaders  find  it  necessary  to  report  a 
rule  involving  legislation.  Thus  the  establishment  of  the  parcel 
post  was  brpught  about  by  the  adoption. of  a  rule  which  combined 
and  altered  several  bills  which  had  been  considered. 

The  other  committees  vary  in  importance  from  the  Committee 
on  Elections,  which  investigates  election  contests,  to  the  Com- 
mittees on  Expenditures  in  the  various  executive  departments  — 
committees  which  seldom  meet,  but  which  give  their  chairmen 
certain  perquisites  in  the  way  of  appointments. 


CONGRESS  AT  WORK  347 


n  the  Senate  perhaps  the  most  important  committees  are 
those  upon  Finance  (which  frames  the  revenue  measure),  Appro- 
priations, Foreign  Relations  (which,  because  of  the  Senate's 
part  in  making  treaties,  is  of  vital  importance),  Military  Affairs, 
Naval  Affairs,  Judiciary,  and  Interstate  and  Foreign  Commerce  ; 
while  the  committees  on  Revolutionary  War  Claims  and  Indus- 
trial Arts  and  Expositions  derive  their  little  importance  from  the 
perquisites  attached  to  them. 

At  the  first  session  of  Congress  the  committees  were  elected,  choice  of 
but  from  1  790  to  1911  they  have  been  appointed  by  the  Speaker.  formerly668 
This  prerogative  was  jealously  regarded  and  attacked  at  various  aPP°mted 
times  by  dissatisfied  members.1  Yet  Mr.  Reed  probably  voiced 
the  sentiments  of  the  House,  when  he  said  that  it  was  safer  to 
trust  a  Speaker  who  acted  in  the  open  House  than  a  board 
which  acted  in  secret.2  It  must  be  remembered,  however,  that 
the  make-up  of  committees  seldom  represents  the  Speaker's  HOW  elected 
personal  choice  but  the  result  of  conference  with  other  leaders. 
Nevertheless,  in  the  revolt  against  "  Cannonism  "  the  Democrats 
voted  that  the  committees  should  be  elected  by  the  House. 
Actually  they  are  nominated  by  the  Committee  on  Ways  and 
Means,  approved  by  the  caucus,  and  ratified  by  the  House. 
Conferences  and  bargains  probably  continue,  but  under  the  super- 
vision of  the  chairman  of  the  Committee  on  Ways  and  Means 
rather  than  that  of  the  Speaker.  Unless  the  chairman  occupies 
as  prominent  a  place  in  the  public  eye  as  the  Speaker,  it  is 
more  difficult  to  bring  home  the  responsibility  to  him.  More- 
over, it  is  likely  that  the  party  caucus,  to  which  the  nominations 
are  submitted,  may  force  some  changes  apart  from  the  pressure 
of  the  majority. 

In  the  Senate  the  committees  were  formerly  nominated  by  committees 
a  Committee  on  Selection  which  was  appointed  by  the  caucus 


chairman.     In  1912,  however,  the  Democrats  provided  for 
elected  Committee  on  Committees. 

In  both  the  House  and  the  Senate  the  rule  of  seniority  is  closely  The  seniority 
followed.    New  members  are  placed  at  the  foot  of  the  list  of 
the  majority  or  minority  members  and  generally  slowly  malce 

1  In  1806,  1832,  1841,  and  1881. 

2  Congressional  Record,  January  17,  1882,  47th  Cong.,  ist  Sess.,  p.  465. 


348    THE  GOVERNMENT  OF  THE  UNITED  STATES 

their  way  to  the  top  of  the  list.  Speaker  Cannon,  however,  is 
said  to  have  made  promotions  and  demotions  in  order  to  obtain 
the  most  efficient  chairmen.  Other  Speakers  may  have  to  a 
slight  extent  followed  his  example,  and  perhaps  all  Speakers 
have  varied  the  seniority  rule  in  some  instances  to  pay  political 
or  personal  obligations.  But  in  spite  of  these  exceptions  and 
in  spite  of  the  protests  of  dissatisfied  members,  length  of  service 
is  rewarded  fully  as  much  as  ability. 
The  effect  of  In  both  the  House  and  Senate  the  committees  are  very 
powerful.  Constituted  so  that  the  majority  is  always  in  the 


duce  confess  ascendancy,  their  reports  are  generally  accepted  in  both  bodies. 

to  a  tody  to     And  conversely  a  measure  which  is  not  favored  by  a  committee 

decisions  of     stands  little  chance  of  adoption.    In  the  Senate  a  committee 

mittec*"         report,  even  from  a  party  having  a  safe  majority,  has  to  run 

the    gantlet   of   unlimited   debate    and   is    often   amended   not 

always  in  accordance  with  the  wishes  of  the  committee.    In  the 

House  this  happens  less  frequently.    The  size  of  the   House 

precludes  much  constructive  debate,  and  the  power  and  influence 

of  the   chairman   is   generally  supported   by   the   whole   party 

organization  of  the  House.    In  cases  of  great  political  importance 

a  special  rule  may  be  reported  which  forces  the  party  to  accept 

the  measure  as  reported  by  the  committee  without  change  or 

amendment,  or  to  vote  to  defeat  a  measure  of  great  importance 

to  the  party.    However,  this  last  seldom  occurs. 

Lack  of  In  the  House  the  actual  legislation  is  therefore  more  and 

harmony  e 

between  com-  rnore  performed  in  the  committees,  and  the  House  itself  does 
little  more  than  ratify  their  decisions.  As  a  result,  for  legisla- 
tive purposes,  the  House  is  divided  into  miniature  Houses  each 
charged  with  its  particular  field.  The  result  is  unfortunate. 
*  Committees  seldom  work  in  harmony.  For  example,  the  Ways 
and  Means  Committee  may  reduce  the  taxes  at  the  same  time 
that  the  Committee  on  Rivers  and  Harbors  may  undertake  an 
extravagant  scheme  of  internal  improvements.  Or,  as  happened 
in  1917,  the  Ways  and  Means  Committee  may  report  a  scheme 
for  taxation  which  provides  for  but  a  fraction  of  the  amount 
necessary  for  the  conduct  of  the  government  or  for  the  military 
and  naval  appropriations.  In  the  days  of  the  Speaker's  power 
it  was  believed  that  he,  through  his  committee  appointments, 


CONGRESS  AT  WORK  349 

particularly  of  the  chairmen,  could  enforce  his  leadership  upon 
the  House.  With  strong  Speakers  this  was  true,  as  far  as 
measures  of  great  party  and  political  importance  were  concerned. 
But  even  under  Speaker  Cannon,  whose  nickname  was  "  The 
Watch  Dog  of  the  Treasury,"  the  appropriations  increased 
alarmingly.  While  under  the  Democrats,  pledged  to  check  the 
Republican  extravagance,  they  exceeded  those  of  the  Republicans 
and  threatened  a  deficit. 

The  division  of  power  among  so  many  committees  has  weakens 
weakened  responsibility.  In  England  the  Prime  Minister  is  resP°nsibility 
responsible  for  all  the  actions  of  his  followers,  and  the  party 
is  returned  to  power  if  the  country  approves  of  his  policy.  In 
the  United  States  no  one  person  can  be  held  responsible.  Not 
the  president,  for  he  has  no  constitutional  control  over  Congress  ; 
not  the  Speaker,  for  he  has  lost  so  large  a  measure  of  his 
power  that  it  would  be  absurd  to  saddle  the  responsibility  upon 
him.  Only  the  committee  chairmen  can  be  held  responsible, 
and  it  is  difficult  if  not  impossible  .to  bring  home  the  respon- 
sibility to  a  dozen  chairmen  in  the  House  and  a  like  number 
in  the  Senate.  Some  of  these  men  are  of  little  prominence, 
and,  while  some  may  hold  a  position  in  the  public  eye,  few 
people  understand  their  part  in  legislation  and  are  able  to  fix 
the  responsibility  on  them.  Consequently  the  individual  member 
passes  his  reponsibility  on  to  the  party,  and  the  party  to  the 
committee  chairmen.  The  committee  chairmen  at  most  are 
responsible  to  their  constituencies,  and  these  are  usually  loyal 
through  the  judicious  use  of  patronage  and  favors. 

In  spite  of  these  criticisms  it  is  hard  to  see  how  under  our  combined 
system  of  government  the  power  of  the  committees  could  be 
dispensed  with.    The  Constitution  precludes   executive   leader- 
ship  through  a  cabinet.    The  only  other  method  is  legislative  responsibility 
leadership  by  committees  and  their  chairmen.    If  this  is  frankly 
recognized  and  the  action  of  the  committee  endorsed  by  the 
party  caucus,  the  party  as  a  whole  may  be   held   responsible. 
The  workings  of  the  Democrats  since  1911  show  some  possi- 
bilities in  this  direction. 


350    THE  GOVERNMENT  OF  THE  UNITED  STATES 

THE  PROCESS  OF  LEGISLATION 

Bills  for  raising  revenue  originate  in  the  House  of  Repre- 
sentatives ;  all  others,  however,  may  originate  in  either  branch 
of  Congress.  While  there  are  some  minor  differences  in  the 
passage  of  a  resolution  which  originates  in  the  Senate,  it  will 
give  sufficient  information  to  follow  the  passage  of  an  ordinary 
bill  originating  in  the  House. 

Originally  when  bills  were  introduced  by  a  member  it  was 
necessary  to  obtain  leave ;  that  is,  to  carry  a  motion  giving  the 
member  leave  to  introduce  a  particular  measure.  During  the 
debate  upon  this  motion  it  was  possible  to  express  the  approval 
of  the  House  upon  the  principle  involved  and  to  exercise  some 
supervision.  By  1880  this  custom  had  been  so  relaxed  that 
upon  every  Friday  the  roll  of  the  House  was  called  by  states 
and  members  could  introduce  bills  without  leave  or  notice.  In 
1890  the  present  rule  was  adopted  by  which  a  member  pre- 
pares his  bill  and  places  it  in  the  "  box  "  at  the  clerk's  desk. 
There  is  no  check  or  supervision  upon  the  introduction  of  these 
measures  and  seemingly  no  limit  to  their  number.  In  the  first 
session  of  the  64th  Congress  (December,  1915)  in  a  total  of 
two  hundred  and  seventy-eight  days  there  were  26,099  b^8  and 
resolutions  of  which  7020  were  Senate  bills  and  17,798  House 
bills.  The  system  has  the  advantage  of  affording  an  easy 
method  of  introducing  measures  of  importance,  and  saves  time ; 
but  it  also  affords  notoriety  seekers  and  extremists  the  oppor- 
tunity to  give  their  schemes  prominence  and  publicity.  This  is 
unfortunate  and  sometimes  disastrous,  for  the  report  that  some 
ill-considered  measure  was  introduced  might  cause  financial 
panic  and  alarm  among  the  interests  affected. 

All  bills  and  resolutions  are  referred  to  the  committees  hav- 
ing jurisdiction  over  the  subject  treated.  In  the  case  of  private 
bills  the  introducer  writes  the  name  of  the  committee  to  which 
it  is  to  be  referred.  In  the  case  of  public  bills  the  reference 
is  made  by  the  Speaker  according  to  the  rules  of  the  House. 
Generally  there  is  no  doubt  as  to  which  committee  has  jurisdic- 
tion over  the  bill  and  reference  is  made  automatically  by  the 
Speaker's  clerk.  Sometimes,  however,  bills  are  on  the  border 


CONGRESS  AT  WORK  351 

line  and  jurisdiction  is  shared  by  several  committees.1  What- 
ever reference  is  made,  it  is  extremely  difficult  for  another  com- 
mittee to  get  possession  of  a  measure  without  the  assent  of  the 
first  committee.2 

Sections  of  the  president's  message  proposing  legislation  are 
likewise  referred  to  committees  having  jurisdiction  over  the 
subject  matter  recommended.3 

The  proposed  measure  is  entirely  in  the  hands  of  the  com-  (3)  consider- 
mittee.  It  may  report  it  unchanged,  it  may  amend  it,  it  may  committee 
substitute  an  entirely  different  measure  for  the  one  referred  to 
it,  —  for  although  technically  a  committee  cannot  originate  a  new 
measure,  it  may  amend  by  striking  out  all  after  the  clause  "  Be 
it  enacted."  But  generally  the  committee  quietly  ignores  the 
measure,  —  "pigeonholes"  it  is  the  word.  This  is  the  fate  of  the 
vast  proportion  of  measures.  Until  1900  there  was  but  little 
opportunity  to  force  a  committee  to  report.  But  as  a  part  of 
the  movement  to  weaken  the  control  of  the  Speaker  and  the 
leaders,  a  new  section  was  added  to  Rule  XXVII,  which  allows 
a  member  to  file  a  motion  to  discharge  the  committee  from  con- 
sideration of  a  bill  of  which  it  has  possession  for  fifteen  days. 
This  motion  is  then  entered  upon  the  Calendar  of  Motions  to 
Discharge  Committees  and  may  be  acted  upon  if  it  is  reached 
when  the  calendar  is  called.  The  relief  afforded  by  this  is  more 
seeming  than  real. 

In  consideration  and  framing  of  legislation  the  committee  acts 
both  publicly  and  privately,  both  as  a  whole  and  in   sections. 
Generally  a  subcommittee  is  formed  to  consider  a  special  bill,  and  [subcom- 
in  the  case  of  appropriation  and  tariff  bills  sections  are  referred 
to  subcommittees.    These  subcommittees  may  contain  members 

1  Such,  for  example,  was  the  bill  laying  a  tax  on  oleomargarine.    Bills  pro- 
posing this  were  referred  alike  to  the  Committee  on  Agriculture  and  the  Com- 
mittee on  Ways  and  Means,  and  the  bill  which  finally  passed  was  reported  by 
the  Committee  on  Agriculture. 

2  Speaker  Cannon  changed  the  reference  of  the  bill  creating  an  Appalachian 
reserve  from  the  Committee  on  Agriculture  to  the  Committee  on  Judiciary, 
nominally  to   consider  the  constitutionality  of  the   question,  although  it  was 
asserted  that  he  did  so  to  kill  the  measure. 

8  See  P.  S.  Reinsch,  Readings  on  American  Federal  Government,  pp.  257- 
265,  for  extracts  from  a  debate  upon  this  question,  quoting  from  the  Congres- 
sional Record,  December  13-15,  1905. 


[Process  of 
consideration 
by  a  com- 
mittee] 


352    THE  GOVERNMENT  OF  THE  UNITED  STATES 

of  the  minority,  but  are  always  controlled  by  the  majority.  In 
the  case  of  a  great  party  measure  the  majority  frames  the  bill 
to  suit  itself  and  sometimes  submits  it  to  a  party  caucus  before 
consulting  the  minority.  Strictly  speaking,  only  one  report  is 
made,  but  the  minority  obtains  the  advantage  of  a  minority 
report  by  filing  their  dissenting  views. 

The  report  is  based  upon  the  predilection  of  the  majority,  from 
such  information  as  they  can  obtain,  and  subject  to  both  public 
and  private  influence.     Hearings  are  generally  held  upon  all 
important  legislation,  which,  while  not  exactly  open  to  everyone, 
afford  to  almost  anyone  who  has  information  the  opportunity  t( 
present  it.     But  the  real  work  of  the  framing  of  the  bill  is  don< 
in  secret,  where  the  members  may  be   subjected  to  all  kinds 
of  influence  and  the  proposed  measure  altered  by  the  vote  oi 
one  obscure  member.     Proceedings  in  the  committee  cannot 
referred  to  on  the  floor;  hence  there  is  great  opportunity  fc 
secret  influence  and  bargaining,  which  cannot  be  exposed.    Y( 
considering  the  opportunities  for  and  the  temptations  to  fault 
or  corrupt  legislation,  the  standard  is  high,  and   the  produc 
while  far  from  perfect  or  scientific  generally  accomplishes  th( 
objects  desired. 

All  bills  are  put  on  one  of  the  calendars  l  and  reported  to  th< 
House.    It  is  here  that  the  classification  and  priority. of  busines 
is  effectively  used  to  enable  the  House  to  pass  the  necessai 
annual  legislation ;  and  at  this  stage  the  Committee  on  Rules 
frequently  alters  the  procedure  in  order  to  pass  measures  of  part 
importance.    On  each  Wednesday  each  committee  in  turn  h< 
opportunity  to  present  its  measures. 

The  Committee  of  the  Whole  is  the  House  of  Representatives 
acting  under  slightly  different  rules  and  under  a  designated  chair- 
man instead  of  the  Speaker.  Technically  there  are  two  com- 
mittees of  the  whole :  one,  the  Committee  of  the  Whole  House, 
which  generally  deals  with  bills  on  the  Private  Calendar ;  and 
the  other  and  more  important,  the  Committee  of  the  Whole 
House  on  the  State  of  the  Union.  This  committee  deals  with 
bills  on  the  Union  Calendar,  which  are  bills  requiring  appropri- 
ations or  raising  revenue.  The  quorum  of  each  committee  is  one 

1  See  p.  336. 


\ 


CONGRESS  AT  WORK  353 


hundred.  The  previous  question  cannot  be  ordered  in  the  com- 
mittee and  debate  proceeds  under  the  five-minute  rule  until  it  .is 
exhausted  or  until  a  motion  to  close  debate  upon  a  particular 
section  is  passed.  Decisions  are  not  taken  by  a  roll  call  so  that 
members  may  avoid  going  on  record. 

What  constructive  legislation  the  House  accomplishes  is  done  [work  of  the 
in  these  committees.  The  bill  is  read  by  sections  for  amend-  thewhVie] °f 
ments,  and  each  section  is  scrutinized  by  the  minority.  Frequent 
pro  forma  amendments  to  "  strike  out  the  last  word  "  are  offered 
for  the  purpose  of  eliciting  information.  The  debate  is  of  the 
rough-and-ready  variety  with  little  attempt  at  oratory  but  generally 
directly  to  the  point.  Often  in  the  consideration  of  appropriation 
bills  the  result  is  not  fortunate.  Bills  which  have  been  fully  pre- 
pared after  long  consultation  and  frequent  hearings  with  heads 
of  departments  may  be  overturned.  Appropriations  may  be 
increased,  decreased,  or  stricken  out,  and  a  new  appropriation 
may  be  added,  if  it  is  held  to  fall  within  the  rulings  of  the 
chairman  of  the  Committee  of  the  Whole.  It  sometimes  hap- 
pens that  the  most  economically  minded  committee  chairman 
may  find  his  bill  swollen  out  of  all  proportion  by  the  generosity 
or  the  easy  method  of  the  House  which  leads  members  to  vote 
for  one  another's  requests. 

When  the  Committee  of  the  Whole  rises  for  the  day  it  either  (e)  Report  to 
reports  to  the  House  that  it  has  been  considering  a  bill,  or  it 
reports  the  bill  as  amended.  The  chairman  of  the  committee 
then  moves  that  the  bill  be  read  a  third  time  and  passed.  The 
House  may  demand  a  separate  vote  upon  each  amendment  or 
upon  a  series  of  amendments,  and  sometimes,  although  rarely, 
additional  amendments  may  be  offered.  At  this  stage,  moreover, 
it  is  in  order  to  offer  a  motion  to  recommit  the  bill  to  the  com- 
mittee having  it  in  charge  with  instructions.  By  a  ruling  of 
Speaker  Clark  these  instructions  must  have  been  in  order  as  an 
amendment  when  the  bill  was  considered  by  the  Committee  of 
the  Whole.1  Usually  as  an  added  precaution  a  motion  to  recon- 
sider the  vote  by  which  the  bill  is  passed  is  laid  upon  the  table 
by  another  motion.  The  bill  is  then  engrossed,  signed  by  the 
Speaker,  and  sent  to  the  Senate. 

1  House  Manual,  p.  334. 


(8)  Confer- 
ence 


354    THE  GOVERNMENT  OF  THE  UNITED  STATES 

(7)  consider-  All  bills  and  joint  resolutions  passed  by  the  House  are  referred 
Jen0anteby  the  to  the  appropriate  committees  of  the  Senate.  With  some  slight 
technical  changes  due  to  the  rules  of  the  Senate  the  process  sub- 
stantially is  the  same  as  in  the  House.  Opportunity  is  thus  given 
for  the  friends  of  a  measure  to  correct  the  errors  and  omissions 
%  and  to  restore  the  measure  to  its  original  form.  Frequently, 
however,  the  Senate  amends  most  fundamentally  the  legislation 
of  the  House,  and  in  matters  of  appropriation  bills  the  Senate 
is  apt  to  be  even  more  generous  than  the  Ht>use.  At  times 
disputes  between  the  Houses  have  occurred  over  the  right  of 
the  Senate  to  add  new  material  to  a  bill  for  raising  revenue,1  but 
generally  the  Senate  is  allowed  to  amend  or  recast  revenue  bills 
with  no  more  protest  than  attends  other  bills. 

If  the  Senate  passes  the  bill  in  identically  the  same  form  in 
which  it  passed  the  House,  the  bill  is  sent  to  the  president  and 
becomes  a  law  upon  receiving  his  signature.  If  on  the  other 
hand  one  House  amends  the  work  of  the  other,  the  bill  is  re- 
turned to  the  House  originally  passing  it.  Here  one  of  two 
courses  may  be  followed.  The  first  one,  very  seldom  adopted, 
is  to  agree  to  the  amendments  which  have  been  made.  In  this 
case  the  amended  bill  is  passed  and  sent  to  the  president.  The 
more  common  method,  however,  is  to  disagree  to  all  amendments 
and  to  request  a  conference. 

Managers,  usually  three  from  each  House,  are  appointed  by 
the  Speaker  in  the  House  and  the  presiding  officer  in  the  Sen- 
ate.2 In  every  case  the  party  in  control  of  each  House  has  a 
majority  from  each  House.  The  conference  may  be  either  free 
or  with  instructions.  The  Senate  has  attempted  to  insist  upon 
free  conferences  and  has  protested  when  informed  that  the 
House  has  given  instructions ;  hence  formal  instructions  are 
seldom  given.  The  conferees  meet  in  secret  and  attempt  to 
reach  some  compromise.  In  the  case  of  appropriation  bills  it  is 
common  to  recommend  a  figure  between  the  two  extremes,  or 
in  the  case  of  amendments,  for  each  House  to  recede  from  a 
certain  number  of  amendments  in  return  for  the  adherence  of 

1  See  pp.  285-286. 

2  T.  P.  Cleaves,  "  Manual  in  Conferences  and  Conference  Reports  "  in  Rules 
and  Manual  of  the  United  States  Senate,  pp.  433  et  seq. 


[Procedure 
and  work  of 
conference 
committees] 


CONGRESS  AT  WORK  355 

the  other  House  to  a  similar  number.  In  the  case  of  legislative 
provisions  the  process  is  not  so  simple.  Technically  the  mana- 
gers cannot  add  any  new  material  to  the  bill  or  omit  anything 
which  has  passed  both  Houses ;  but  in  the  endeavor  to  find 
common  ground  sometimes  practically  new  legislation  emerges. 
In  fact,  in  recent  years,  provisions  are  adopted  by  both  Houses 
which  are  confessedly  imperfect,  on  the  understanding  that  they 
will  be  corrected  or  altered  in  conference. 

In  case  the  conferees  cannot  agree  they  report  the  fact  to  [Result  of 
their  respective  Houses.    Then  action  may  be  taken  instructing  committees] 
the  managers  to  recede  or  continue  their  adherence  to  certain 
provisions.     Finally,  one  House  or  the  other  gives  way  and  a 
compromise  is  reached  which  -is  accepted  by  both  Houses  and 
sent  to  the  president.    The  report  of  the  conference  committee 
is  in  order  at  any  time  in  both  Houses,  being  a  question  of 
highest  privilege. 

The  fact  that  the  conferees  work  in  secret  arid  frequently  [criticism  of 
recommend  provisions  not  acceptable  to  either  House  has  led  committees] 
to  charges  of  undue  influence  and  even  corruption.  There  is 
little  evidence  of  the  latter,  but  influence  is  undoubtedly  brought 
to  bear  upon  the  conferees  especially  by  the  administration. 
For  example,  in  1909  President  Taft  refrained  from  interfering 
or  exerting  his  influence  during  the  passage  of  the  Payne- Aldrich 
Tariff  Bill,  but  held  frequent  meetings  with  some  of  the  mem- 
bers of  the  conference  committee;  and  it  was  reported  that  in 
1917  President  Wilson  utilized  his  whole  influence,  which  had 
failed  in  the  Senate,  to  compel  the  conferees  to  abandon  the 
idea  of  a  food  commission  in  favor  of  a  food  controller.  With- 
out some  such  device  it  is  difficult  to  see  how  two  jealously 
independent  bodies  could  be  brought  to  an  agreement,  but  the 
fact  that  it  has  worked  so  well  has  made  both  Houses  somewhat 
careless  in  the  original  consideration  of  the  measure.  Thus,  in 
1917  the  Democratic  leader  openly  stated  in  the  House  that  the 
war  revenue  bill  was  defective,  but  it  was  passed  with  the  hope 
that  the  Senate's  revision  and  alteration  would  correct  some  of 
the  glaring  errors.  During  the  discussion  of  the  Food  Bill  in 
the  Senate  various  provisions  were  allowed  to  be  incorporated 
with  the  knowledge  that  they  would  be  eliminated  in  conference. 


356    THE  GOVERNMENT  OF  THE  UNITED  STATES 

(9)  presiden-  When  the  identical  bill  has  been  passed  by  both  Houses  and 
1  enrolled  and  signed  by  the  presiding  officers  it  is  sent  to  the 
president.  He  may  sign  the  bill,  or  allow  it  to  become  a  law 
without  his  signature,  or  return  it  to  the  House  in  which  it 
originated,  without  his  approval,  stating  his  reasons  therefor. 
This  last,  the  veto  message,  is  a  highly  privileged  matter,  and 
a  motion  to  refer  it  to  a  committee  or  to  discharge  a  committee 
from  consideration  of  it  is  always  in  order.  If  two  thirds  of  the 
members  present  in  each  House  approve  the  bill,  it  becomes  a 
law,  in  spite  of  the  president's  objections. 


CHAPTER  XIV 

CONGRESS  AND  THE  CONSTITUTION 
THE  POWERS  OF  CONGRESS 

The  constitutional  grant  of  authority  to  Congress  is  found 
chiefly  in  Article  I,  Sect.  viii.  Here  are  eighteen  clauses  giving 
certain  definite  powers.  From  these  clauses  as  interpreted  by 
Congress  and  the  courts  is  derived  the  authority  for  all  the  laws 
of  the  United  States.  Although  the  functions  performed  by  the 
government  will  be  discussed  in  detail  in  subsequent  chapters  it 
is  necessary  to  obtain  a  comprehensive  view  in  order  to  appre- 
ciate not  only  the  actual  work  of  the  government  but  the  po- 
tential and  latent  powers  granted  to  it  as  well.  This  survey  can 
best  be  secured  by  a  classification  and  a  brief  description  of  the 
powers  granted  to  Congress. 

Congress   is   given  ample  power  in  financial  and  monetary  Financial 
matters.    The  power  of  taxation  and  borrowing  without  limit  as  tary powers 
to  amount  is  freely  granted.    This  remedied  one  of  the  greatest 
defects  of  the  Articles  of  Confederation  and  gave  Congress  the 
power  to  provide  for  debts,  past  or  future,  and  thus  to  give  value 
to  bonds ;  and  to  provide  for  the  common  welfare  of  the  nation 
by  taxation.    It  is  worth  noting  that  while  the  legislative  power 
is  limited  to  subjects  granted  by  the   Constitution,  the  taxing 
power  is  not.    Thus  Congress  may  not  legislate  for  the  common 
welfare,  but  may  levy  taxes  and  appropriate  money  for  the  com-  Taxes 
mon  welfare.    The  limitations  upon  the  taxing  power  are  few 
and  are  chiefly  in  the  interest  of  uniformity.     Two  limitations, 
however,  must  be  noted  here.    Congress  may  not  tax  any  article 
exported   by   a   state,    thus   making    export   duties    impossible. 
Again,  all  direct  taxes,  which  is  interpreted  to  mean  poll  taxes  Direct  taxes 
and  taxes  on  real  estate  and  personal  property,  must  be  appor- 
tioned   according   to   the    population.    As    interpreted    by   the 
Supreme  Court  in  1895,  taxes  upon  incomes  were  direct  taxes, 

357 


358    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Income  taxes 


Coin  money 


and  since  they  could  not  be  apportioned  they  could  not  be 
levied.  This  -decision  was  altered  by  the  passage  of  the  Six- 
teenth Amendment,  by  which  taxes  on  incomes  from  whatever 
source  derived  need  not  be  subject  to  apportionment.  The  fact 
that  Congress  has  not  merely  the  power  to  lay  but  also  to  collect 
taxes,  makes  real  taxes  of  the  federal  taxes,  quite  unlike  the 
requisitions  demanded  by  the  Continental  Congress.  A  federal 
tax  falls  not  upon  a  state  but  on  individuals  and  is  collectible 
not  by  state  but  by  federal  machinery. 

The  power  to  coin  money  and  to  regulate  the  value  thereof 
is  also  a  necessary  one,  and,  taken  in  connection  with  the  pro- 
hibition laid  upon  the  states,  it  has  given  to  Congress  the 
complete  monopoly  in  this  field.  It  is  to  be  remembered  that 
the  prohibition  upon  making  anything  but  gold  or  silver  legal 
tender  applies  to  the  states  and  not  to  Congress.  Congress  can 
Legal  tender  issue  money  of  any  sort,  fix  the  value  and  make  it  legal  tender 
for  the  payment  of  both  public  and  private  debts,  or,  as  in  the 
case  of  the  greenbacks,  for  the  payment  of  private  debts  but 
not  for  those  due  to  the  government.  To  protect  itself  a  special 
clause  allows  Congress  to  punish  counterfeiting  the  obligations 
of  the  United  States. 

The  entire  regulation  of  all  commerce,  interstate  and  foreign, 
is  in  the  hands  of  Congress.  When  it  is  seen  how  wide  an 
interpretation  is  given  by  the  courts  to  the  word  "  commerce," 
the  extent  of  this  power  may  be  realized.  Commerce  is  inter- 
course, and  commerce  includes  all  agencies  by  which  commercial 
intercourse  is  carried  on.  Again,  while  Congress  may  not  legis- 
late directly  concerning  the  welfare  of  the  country,  it  may 
regulate  commerce  in  the  interests  of  that  welfare,  and  since 
practically  all  business  is  engaged  in  interstate  or  foreign  com- 
merce, Congress  thus  supervises  and  controls  such  business.1 
Thus  the  Pure  Food  legislation,  the  Anti-Trust  laws,  the  Adam- 
son  Law,  and  countless  other  acts  derive  their  validity  from  this 
grant.  In  like  manner,  internal  improvements  and  the  large  sums 
spent  on  rivers  and  harbors  are  justified  by  this  clause. 

Closely  connected  with  the  grant  of  commercial  power  is 
the  clause  which  allows  Congress  to  pass  laws  for  the  issuance 

1  See  Chapters  XIX,  XX. 


Commerce 
and  business 


Extensive  in- 
terpretation 
of  the  word 
"commerce" 


CONGRESS  AND  THE  CONSTITUTION  359 

of  patents  and  copyrights.    These  establish  limited  monopolies  patents  and 
for  their  holders,  which  within  recent  years  have  proved  trouble-  copynght 
some  in  the  light  of  the  regulations  against  the  restraint  of  trade.1 

To  assist  in  commercial  intercourse  Congress  is  given  power  post  offices 
to  establish  post  offices  and  post  roads  and  hence  to  operate  them 
and  to  prescribe  their  functions  and  the  regulations  controlling 
them.    Only  within  recent  years  have  these  powers  begun  to  be 
used  to  their  full  extent.    With  the  establishment  of  rural  free 
delivery,  postal  savings  banks,  and  parcel  post,  the  government  is  postal  sav- 
just  beginning  to  utilize  some  of  the  powers  latent  in  this  grant.  ings  b 
Since   Congress  may  establish  a  post  office,  it  may  regulate 
what  may  be  sent  by  post.    This  gives  another  opportunity  for 
the  federal  government  to  legislate  concerning  the  welfare  of 
the  country.    Acting  on  this  power  many  laws  have  been  passed  Fraud  orders 
excluding  objectionable  or  fraudulent  matter  from  the  mails. 
In  1917  this  clause  was  invoked  to  establish  a  quasi-censorship. 
By  the  Espionage  Act  it  was  made  unlawful  to  mail  seditious 
matter,  and  all  papers  published  in  foreign  languages  were  re- 
quired to  secure  permits  from  the  Postmaster-General  or  to  file 
translations  of  the  articles  they   printed.    Thus  the  provision 
that  Congress  shall  make  no  law  concerning  the  liberty  of  the 
press  was  not  violated,  and  the  interests  of  the  government 
were  safeguarded. 

Congress  is  also  given  authority  to  establish  a  system  of  weights  and 
weights  and  measures,  and  might  impose  the  metric  system  on 
the  nation.  So  far  all  that  Congress  has  done  in  this  line  is 
to  make  the  use  of  this  system  lawful  but  not  obligatory.  A 
bureau  of  the  government  is  performing  a  most  valuable  work 
in  establishing  standards  of  weights  and  measures. 

The  military  power  of  Congress  is  most  adequate  and  far-  The  power  of 
reaching.  The  power  to  declare  war,  which  stands  first  on  the 
list,  is  the  least  important  of  the  powers  granted.  As  has  been 
seen,  the  president  in  his  capacity  as  commander  in  chief  can 
take  such  steps  that  war  is  inevitable  or  that  war  may  actually 
exist.  Hence  congressional  action  may  be  confined  to  the  pas- 
sage of  a  resolution  that  a  state  of  war  does  exist.  The  power 
to  make  peace  is  not  given  to  Congress  but  is  shared  between 

1  See  Chapter  XX. 


360    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Special  legis- 
lative grants 


Punishment 
for  crime 


the  president  and  the  Senate  in  the  treaty-making  power.  The 
president  is  made  commander  in  chief  of  all  the  military  and 
naval  forces  of  the  United  States  by  the  Constitution  and  may 
thus  direct  the  military  operations  of  the  government  independ- 
ently of  Congress.  No  appropriation  for  the  support  of  the 
army  may  be  made  for  more  than  two  years.  Beyond  these 
restrictions  no  limitation  exists  on  Congress.  An  army  may  be 
raised  of  any  size,  quasi-universal  service  may  be  established, 
as  was  done  in  1917,  or  universal  military  service  may  be  made 
obligatory,  as  is  even  now  demanded  by  some.  Congress  may 
employ  the  militia  of  the  several  states  for  the  maintaining  of 
order  and  the  repelling  of  invasions,  and  Congress  can  make 
.  rules  for  the  disciplining  of  the  forces  of  the  United  States. 
It  should  also  be  remembered  that  the  power  of  taxation  and< 
of  borrowing  money,  and  the  unlimited  legislative  grant  in 
clause  1 8,  to  make  all  laws  necessary  and  proper  to  carry  into 
effect  any  of  the  powers  granted  to  Congress,  may  be  used. 
Once  let  war  be  declared,  and  all  means  not  expressly  forbidden 
by  the  Constitution  may  be  utilized  to  further  it.  In  this  respect 
the  United  States  has  greater  potential  powers  than. almost  any 
European  state,  and  with  the  resources  at  its  command  could 
become  the  most  powerful  and  militaristic  state  in  the  world. 

In  four  clauses  Congress  is  given  special  legislative  authority. 
It  may  establish  uniform  rules  for  naturalization,  thereby  coming 
into  close  relations  with  the  president  in  the  exercise  of  his 
power  to  make  treaties ;  it  may  also  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas,  again  entering  the 
field  of  international  affairs,  which  is  otherwise  generally  re- 
served to  the  president.  Congress  may  pass,  and  has  at  different 
times  passed,  uniform  rules  for  bankruptcy,  overriding  the  laws 
of  the  several  states.  Congress  also  exercises  exclusive  legislative 
power  over  the  District  of  Columbia  and  all  federal  territory. 

Congress  may  not  define  crimes  or  establish  a  general  criminal 
code  for  the  United  States.  Treason  is  defined  by  the  Constitu- 
tion. Congress  may  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  offenses  against  the  law  of  nations. 
That  is  all.  But  under  the  legislative  grant  to  make  laws  neces- 
sary and  proper  for  executing  the  powers  granted  to  the  federal 


CONGRESS  AND  THE  CONSTITUTION  361 


government,  Congress  may  provide  punishments  for  the  breach 
of  federal  statutes.  Thus,  while  Congress  may  not  define  or 
punish  larceny  in  general,  it  may  both  define  and  punish  larceny 
from  an  instrument  of  interstate  or  foreign  commerce  —  a 
freight  car,  for  example.  Almost  all  the  penal  legislation  of 
1917-1918  was  passed  not  under  the  limited  power  to  define 
and  punish  certain  crimes  but  under  other  clauses,  such  as  the 
regulation  of  commerce  or  of  the  post  office,  the  right  to  raise 
and  equip  armies,  and  so  forth.  The  statutes  themselves  did  not 
define  new  crimes  but  provided  punishments  for  the  breach  of  or 
interference  with  the  execution  of  the  laws  of  the  United  States. 

In  two  ways  Congress  exercises  judicial  functions.  In  cases  judicial 
of  impeachment  the  articles  are  prepared  and  the  trial  conducted  p 
by  the  House  of  Representatives,  and  the  Senate,  sitting  as  a 
court,  renders  the  verdict  and  gives  the  sentence.  More  impor- 
tant than  this  seldom-used  power  is  the  duty  of  Congress  to 
establish  tribunals  inferior  to  the  Supreme  Court.  The  Supreme 
Court  is  the  sole  judicial  body  provided  for  in  the  Constitution. 
It  would  be  physically  impossible  for  the  court  to  exercise  all 
the  judicial  functions  necessary  in  the  United  States.  The 
section  establishing  the  Supreme  Court  looks  for  the  establish- 
ment of  inferior  tribunals  by  giving  to  the  Supreme  Court  very 
little  original  jurisdiction  and  by  providing  that  in  all  other 
cases  its  jurisdiction  shall  be  appellate.  Thus  practically  all  the 
necessary  means  for  enforcing  the  laws  depend  on  congressional 
enactments.  Congress  has  established  the  whole  system  of  federal 
courts.  Congress  may  alter  and  abolish,  and  has  altered  and  abol- 
ished, some  of  the  courts  it  has  established.  It  is  quite  as  impor- 
tant to  remember  the  fact  that  Congress,  in  establishing  a  court, 
can  determine  its  jurisdiction.  Thus  the  judicial  system,  while  in 
theory  an  independent  department,  is  actually  very  much  under 
the  control  of  the  legislature.  It  is  fortunate  that  this  control 
has  remained  potential  and  that  the  courts  have  been  allowed 
very  generally  to  remain  independent  of  and  untouched  by  the 
party  conflicts  in  Congress. 

Congress  has  few  direct  executive  powers.    Nevertheless  in  Executive 
the  use  of  its  legislative  power  it  may  influence  and  control  the  p 
action  of  the  executive.   Even  more,  unless  Congress  established 


362    THE  GOVERNMENT  OF  THE  UNITED  STATES 

the  executive  agencies  by  legislation,  the  wheels  of  the  govern- 
ment would  stop.  Through  the  definition  of  the  duties  to  be 
performed  by  these  executive  agencies  and  through  the  power 
of  the  appropriation  of  funds  Congress  actually  exercises  con- 
siderable executive  control. 

The  "elastic  Finally,  Congress  has  power  to  "  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Constitution  in  the 
government  of  the  United  States,  or  in  any  department  or  officer 
thereof."  Around  the  interpretation  of  "  necessary  and  proper  " 
have  waged  great  constitutional  battles.  In  this  place  it  is  well 
to  call  attention  to  the  power  possessed  by  Congress  to  pass  laws 
to  carry  into  execution  (i)  the  foregoing  powers,  and  (2)  all 
other  powers  anywhere  granted  to  the  government.  The  "  fore- 
going powers"  have  just  been  described  briefly;  but  wide  as 
they  are,  they  are  greatly  extended  by  this  clause.  The  whole 
complicated  legislation  concerning  commerce  is  considered  merely 
the  necessary  and  proper  means  of  regulating  it.  Other  examples 
have  been  briefly  discussed.  (3)  This  legislative  grant  applies  not 
merely  to  clause  1 8  just  classified  but  to  any  powers  granted  any- 
where in  the  Constitution  to  the  United  States  or  to  any  officer. 
The  whole  executive  department,  aside  from  the  president,  owes 
its  very  existence  and  continuance  to  legislation  passed  under  f 
this  clause.  The  executive  power  of  the  president  himself  as 
granted  by  the  Constitution  is  small  compared  with  the  functions 
he  exercises  as  the  result  of  congressional  enactments.  It  is  this 
clause  as  interpreted  by  the  courts,  together  with  the  judicial  in- 
terpretation put  upon  the  other  powers  granted  to  Congress,  that 
has  made  it  possible  for  the  Constitution  to  retain  its  original 
form  and  yet  to  be  adapted  to  such  changing  conditions. 

CONGRESSIONAL  LEGISLATION  AND  THE  CONSTITUTIONAL 
LIMITATIONS 

"All  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States.  .  .  ." *  Legislative  power  may 
be  defined  as  the  power  to  declare  the  will  of  the  sovereign 

1  The  Constitution  of  the  United  States,  Article  I,  Sect.  i. 


CONGRESS  AND  THE  CONSTITUTION  363 


state  in  the  form  of  law,  that  is,  in  a  rule  enforceable  by  the 
courts.  By  this  wide  definition  legislative  power  would  include 
not  only  the  power  to  adopt,  amend,  or  repeal  statutes  but 
also,  on  the  one  extreme,  to  make  or  amend  constitutions  and, 
on  the  other,  to  pass  municipal  by-laws  or  ordinances.  In  the 
article  under  consideration  no  such  legislative  power  is  granted 
to  Congress.  The  phrase  is  used  in  a  restricted  sense.  Not  all 
the  legislative  power  of  the  nation  is  vested  in  Congress  but  only 
such  powers  as  are  "  herein  granted  "  by  the  Constitution.  Con- 
gress, therefore,  unlike  the  English  parliament,  which  is  sovereign 
and  possesses  plenary  legislative  power  in  the  fullest  sense  of  the 
definition  given  above,  is  subordinate  to  the  Constitution  and  has 
only  such  legislative  powers  as  are  granted  to  it.1 

The  legislative  powers  of  Congress  are  therefore  subject  to  Limitations 
various  limitations :  ( I )  the  limitations  set  by  the  Constitution  pow^of^ 
in  the  different  grants  and  prohibitions  ;  (2)  the  limitation  which  Consress 
makes  the  president  a  part  of  Congress  and  requires  his  assent 
to  all  legislation  unless  two  thirds  of  each  House  should  over- 
ride his   "veto";    (3)  the  judicial  limitation  which  all  courts 
necessarily  apply  in  interpreting  or  declaring  the  meaning  of 
statutes  passed  by  legislative  bodies. 

The  political  limitation,  that  is,  the  part  played  by  the  execu-  constitu- 
tive in  legislation,  will  be  discussed  in  the  following  section.2  tationslim 
The  constitutional  and  judicial  limitations,  however,  have  and  enforced  by 

J  the  court 

will  continue  to  have  a  great  effect  upon  the  process  and  kind  of 
legislation  passed  by  Congress.  In  the  last  resort  these  limita- 
tions are  declared  by  the  courts ;  that  is,  the  Constitution  being 
the  supreme  law  of  the  land,  the  judges  are  therefore  obliged  to 
apply  its  provisions  rather  than  the  acts  of  Congress.  In  other 
words,  an  act  of  Congress  contrary  to  the  Constitution  is  declared 
ultra  vires  —  beyond  the  power  of  Congress  to  pass  —  or,  in  the 
popular  phrase,  unconstitutional.  This  power  of  the  courts  to 
declare  acts  of  Congress  void  or  unenforceable  will  be  treated 
in  Chapter  XVI.  The  grants  and  prohibitions  found  in  the 
words  of  the  Constitution  are  constantly  in  the  mind  of  Con- 
gress, and,  by  its  willingness  to  pass  or  by  its  refusal  to  adopt 


1  See  pp.  47-57- 

2  See  also  pp.  368-373. 


364    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Liberal  or 
loose  con- 
struction 


Upheld  by 
the  court 


Theory  of 

inherent 

sovereignty 


different  kinds  of  legislation,  Congress  interprets  and  enforces 
upon  itself  its  own  conceptions  of  the  constitutional  limitations. 
At  different  periods  Congress  has  held  different  interpreta- 
tions of  these  limitations.  The  earliest  idea  was  one  of  liberal 
or  loose  construction;  By  this  theory  the  so-called  "  elastic 
clause "  received  a  liberal  interpretation.  "  Necessary  and 
proper  "  seemed  to  mean  useful  and  expedient.  Acting  on  this 
interpretation  Congress  established  a  protective  tariff,  a  national 
bank,  built  internal  improvements,  and  made  paper  money  legal 
tender.  Under  the  influence  of  Marshall  this  congressional 
interpretation  was  upheld.  In  1804  he  said: 

In  construing  this  clause  it  would  be  incorrect,  and*  produce  end- 
less difficulties,  if  the  opinion  should  be  maintained  that  no  law  was 
authorized  which  was  not  indispensably  necessary  to  give  effect  to  a 
specified  power. 

Where  various  systems  might  be  adopted  for  that  purpose,  it  might 
be  said  with  respect  to  each,  that  it  was  not  necessary  because  the  end 
might  be  obtained  by  other  means.  Congress  must  possess  the  choice 
of  means,  and  must  be  empowered  to  use  any  means  which  are  in  fact 
conducive  to  the  exercise  of  the  power  granted  by  the  Constitution.1 

In  the  discussion  "of  McCullough  v.  Maryland?  he  used  the 
oft-quoted  phrase : 

Let  the  end  be  legitimate,  let  it  be  within  the  scope  of  the  Consti- 
tution, and  all  means  which  are  appropriate,  which  are  plainly  adapted 
to  that  end,  which  are  not  prohibited,  but  which  consist  with  the  letter 
and  spirit  of  the  Constitution,  are  constitutional. 

A  variation  of  this  liberal  construction  of  the  constitutional 
limitations  is  seen  in  the  theory  of  inherent  sovereignty.  Accord- 
ing to  this  theory  the  federal  government  may  use  not  merely 
all  the  powers  which  are  expressly  granted  to  it  by  the  Con- 
stitution or  which  are  fairly  implied  in  those  grants  but  also 
those  powers  which  are  inherent  in  every  sovereign  national 
government.  In  1898  Senator  Platt  of  Connecticut  said  in  the 
course  of  a  speech  upon  the  powers  of  the  federal  government 
to  acquire  territory  and  to  establish  colonies : 

1  U.S.  v.  Fisher  et  al.,  2  Cranch,  358,  396. 
*  4  Wheat,  316,  421. 


CONGRESS  AND  THE  CONSTITUTION  365 


I  propose  to  maintain  that  the  United  States  is  a  nation ;  that  as  a 
nation  it  possesses  every  sovereign  power  not  reserved  in  its  Constitu- 
tion to  the  states  or  to  the  people ;  that  the  right  to  acquire  territory 
was  not  reserved  and  is  therefore  an  inherent  sovereign  right.  .  .  .l 

This  theory  has  not  always  been  repudiated  by  the  Supreme 
Court,  in  fact  in  several  obiter  dicta  the  court  has  seemed  to 
countenance  it.2  In  1906,  however,  in  the  case  of  Kansas  v. 
Colorado,  this  theory  was  thus  emphatically  disavowed  by 
the  court : 

But  the  proposition  that  there  are  legislative  powers  affecting  the  Repudiated 
Nation  as  a  whole  which  belong  to,  although  not  expressed  in,  the  bytl 
grant  of  powers,  is  in  direct  conflict  with  the  doctrine  that  this  is  a 
government  of  enumerated  powers.  That  this  is  such  a  government 
clearly  appears  from  the  Constitution,  independently  of  the  amendments, 
for  otherwise  there  would  be  an  instrument  granting  certain  specified 
things  made  operative  to  grant  other  and  distinct  things.  This  natural 
construction  of  the  Constitution  is  made  absolutely  certain  by  the  Tenth 
Amendment.  This  amendment,  which  was  seemingly  adopted  with 
prescience  of  just  such  contention  as  the  present,  discloses  the  wide- 
spread fear  that  the  National  Government  might,  under  the  pressure  of 
supposed  general  welfare,  attempt  to  exercise  powers  which  had  not 
been  granted.  With  equal  determination  the  framers  intended  that  no 
such  assumption  should  ever  find  justification  in  the  organic  act,  and 
that  if  in  the  future  further  powers  seemed  necessary,  they  should  be 
granted  by  the  people  in  the  manner  they  had  provided  for  amending 
that  act.3 

A  more  recent  development  of  this  theory  was  espoused  by 
President  Roosevelt.  In  one  of  his  addresses  he  said  : 

I  cannot  do  better  than  base  my  theory  of  governmental  action 
upon  the  words  and  ideals  of  one  of  Pennsylvania's  greatest  sons, 
Justice  James  Wilson.  ...  He  developed  even  before  Marshall  the 
doctrine  (absolutely  essential  not  merely  to  the  efficiency  but  to  the 
existence  of  this  nation)  that  an  inherent  power  rested  in  the  nation, 
outside  of  the  enumerated  powers  conferred  upon  it  by  the  Constitu- 
tion, in  all  cases  where  the  object  involved  was  beyond  the  power  of  the 
several  States  and  was  a  power  ordinarily  exercised  by  sovereign  nations. 

1  Congressional  Record,  December  19,  1898,  Vol.  XXXII,  p.  287. 

2  See  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  I, 
p.  68,  for  quotations  and  references  to  opinions.  3  206  U.  S.  46,  89,  90. 


366    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Accepting  this  as  the  Wilson-Roosevelt  doctrine,  it  is  evidently 
quite  different  from  the  doctrine  of  implied  powers  developed 
by  Marshall.  It  more  nearly  resembles  the  doctrine  of  inherent 
powers  just  discussed,  which  has  been  emphatically  repudiated 
by  the  court.  What  President  Roosevelt's  theory  means  is 
that  changed  conditions  may  bring  within  the  control  of  the 
federal  government  matters  which  were  not  actually  or  by  im- 
plication given  to  such  control.  The  correct  interpretation  would 
be  to  admit  that  changing  circumstances  might  make  an  exten- 
sion of  the  federal  control  advisable,  and  to  seek  sanction  for 
such  action  through  a  constitutional  amendment.1 

strict  con-          Sharply   contrasted   with    these   theories   was   that   held    by 

asdefined  by  Jefferson  and  the  Democratic- Republicans.    Thus  Jefferson  pro- 

jefferson        tested  against  the  establishment  of  the  first  United  States  Bank 

in  these  words,  which  may  well  express  the  central  idea  of  the 

straight  constructionists : 

I  consider  the  foundation  of  the  Constitution  as  laid  on  this  ground : 
That  all  "  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  or  to 
the  people."  To  take  a  single  step  beyond  the  boundaries  thus  specially 
drawn  around  the  powers  of  Congress,  is  to  take  possession  of  a  bound- 
less field  of  power,  no  longer  susceptible  of  definition.  .  .  . 

It  has  been  urged  that  a  bank  will  give  great  facility  or  convenience 
in  the  collection  of  taxes.  Suppose  this  were  true :  yet  the  Constitution 
allows  only  the  means  which  are  "  necessary,"  not  those  which  are 
merely  "convenient,"  for  effecting  the  enumerated  powers.  If  such 
a  latitude  of  construction  be  allowed  to  this  phrase  as  to  give  any 
nonenumerated  power,  it  will  go  to  everyone,  for  there  is  not  one 
which  ingenuity  may  not  torture  into  a  convenience  in  some  instance 
or  other,  to  some  one  of  so  long  a  list  of  enumerated  powers.  It  would 
swallow  up  all  the  delegated  powers,  and  reduce  the  whole  to  one 
power,  as  before  observed.  Therefore  it  was  that  the  Constitution -: 
restrained  them  to  the  necessary  means,  that  is  to  say,  to  those  means  t 
without  which  the  grant  of  power  would  be  nugatory.2 

Once  in  power,  however,  the  Jeffersonian  party  was  unable 
to  maintain  this  theory,  nor  could  the  Supreme  Court  under 

1  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  pp.  47-51, 
has  a  full  discussion  of  the  Wilson-Roosevelt  theory. 

2  Macdonald,  Select  Documents  of  United  States  History,  p.  79. 


CONGRESS  AND  THE  CONSTITUTION  367 


Marshall  be  expected  to  abandon  the  principles  the  Federalist 
party  had  established.  Even  the  appointment  of  Taney  in  1836 
made  little  change  in  the  process  of  construction.  -There  was 
perhaps  less  readiness  to  extend  the  functions  of  the  govern- 
ment under  the  implied  powers ;  but  none  in  the  assertion  of 
national  supremacy. 

Another  view  of  the  powers  of  Congress  and  the  constitutional  The  empiric 
limitations  was  expressed  by  Representative  Cockran  in  these  * 
words  in  a  speech  in  the  House  of  Representatives : 

It  seems  to  me  that  the  duty  of  Congress  is  to  examine  closely  the 
condition  of  the  country  and  keep  itself  constantly  informed  of  every- 
thing affecting  the  common  welfare.  Wherever  a  wrong  is  found  to 
exist  with  which  the  nation  can  deal  more  effectively  than  a  state,  it  is 
the  business  of  Congress  to  suggest  a  remedy.  If  the  courts  hold  that 
the  legislation  we  consider  essential  is  beyond  our  power  to  enact,  our 
duty  to  suggest  a  remedy  is  none  the  less  binding,  except  that  instead 
of  proceeding  by  the  enactment  of  a  law  we  should  proceed  by  pro- 
posing a  constitutional  amendment.  .  .  .  Face  to  face  with  a  wrong 
which  we  believe  a  state  cannot  cure,  it  is  our  duty  to  find  a  remedy 
some  way  or  other.  Our  first  step  must  be  in  the  direction  of  legisla- 
tion. The  only  way  we  can  ascertain  definitely  whether  a  law  which 
we  believe  will  prove  effective  is  constitutional  or  unconstitutional  is 
not  by  abandoning  ourselves  to  a  maelstrom  of  speculations  about 
what  the  court  may  hold  or  has  held  on  subjects  more  or  less  kindred, 
but  to  legislate,  and  thus  take  the  judgment  of  the  court  on  that 
specific  proposal.  We  can  tell  whether  it  is  constitutional  or  uncon- 
stitutional when  the  court  pronounces  upon  it  and  not  before.  Even 
if  the  court  declares  it  unconstitutional  its  decision  will  not  reduce  us 
to  helplessness.  When  it  drives  us  from  establishing  a  remedy  by 
legislation  it  will  by  that  very  act  direct  us  to  propose  a  remedy  by 
constitutional  amendment.  Having  framed  a  suitable  amendment  and 
proposed  it  to  the  legislatures  of  the  states,  our  duty  will  have  been 
accomplished.  The  final  step  toward  full  redress  will  then  be  with  the 
bodies  most  directly  representative  of  the  people  affected  by  the  wrong.1 

No  objection  can  be  taken  to  the  theory  thus  expressed.    But  objections 
several  very  serious  objections  prevent  the  practical  working  of  Sewy1"' 
it.    In  the  first  place  it  should  be  the  duty  of  Congress  itself 

1  P.  S.  Reinsch,  Readings  on  American  Federal  Government,  pp.  256-257, 
quoting  from  Congressional  Record,  Apr.  20,  1906. 


368    THE  GOVERNMENT  OF  THE  UNITED  STATES 

to  heed  the  limitations  placed  upon  its  legislative  power  and 
not  to  force  the  Supreme  Court  to  negative  the  work  of  the 
legislative  branch  of  the  government  by  the  application  of  the 
obvious  restrictions  of  the  Constitution.  Popular  criticism  is  all 
too  ready  to  call  such  action  judicial  usurpation.  In  the  second 
place  the  difficulty  of  amendment  of  the  Constitution  makes  it 
almost  impossible  to  secure  the  assent  of  the  necessary  three 
fourths  of  the  states  for  any  but  the  most  general  measures  which 
have  been  long  before  the  people.  Yet,  in  spite  of  these  objec- 
tions, this  empiric  method  has  been  followed  to  a  great  extent  in 
determining  the  legislative  powers  of  Congress.  The  necessity 
for  federal  action  has  risen,  congressional  legislation  has  been 
passed,  and  the  court  has  frequently  by  interpretation  or  con- 
struction found  permission  implied  in  the  Constitution  for  the 
exercise  of  the  needed  power. 

RELATIONS  OF  THE  EXECUTIVE  AND  THE  LEGISLATURE 

Effect  of  It  has  been  said  that  the  framers  of  the  Constitution  patterned 

pedence  on"     tne  presidency  upon  the  model  of  the  English  crown  ;  that  they 
attempted  to  reduce  to  writing  the  vast  but  vague  powers  of  the 


lations  of  the   English  sovereign  and  so  to  limit  them  as  their  unfortunate  ex- 

executive  and  .        & 

the  legisia-     pcrience  with  George  III  had  seemed  to  teach  them  was  necessary. 

Unfortunately  their  observation  was  based  upon  a  period  when 
English  institutions  were  not  functioning  normally  and  their 
information  was  derived  from  the  writings  of  lawyers  of  a  pre- 
vious age  rather  than  from  the  actual  experience  of  parliamen- 
tary leaders.  They  feared  and  dreaded  an  executive  with  the 
legal  powers  of  the  English  sovereign,  but  they  failed  to  com- 
prehend how  the  existence  of  these  legal  powers  was  controlled 
by  political  customs  which  rendered  them  not  merely  innocuous 
but  actually  of  the  greatest  use  in  the  operation  of  the  govern- 
ment. On  the  other  hand,  their  experiences  with  weak  execu- 
tives had  been  equally  disastrous.  The  executive  power  which 
the  Continental  Congress  and  the  early  governors  of  the  states 
lacked  had  taught  the  folly  of  absolute  legislative  supremacy 
over  the  executive.  As  they  solved  the  problem  they  created 
a  strong  independent  executive,  independent  of  Congress  in 
method  of  choice  and  term  of  office,  strong  in  administrative 


CONGRESS  AND  THE  CONSTITUTION  369 


and  executive  functions,  almost  beyond  the  power  of  Congress 
to  control.  They  then  created  an  equally  independent  legislature, 
giving  to  it  important  powers  so  wide  and  capable  of  such  ex- 
tensive interpretation  that  they  have  proved  adequate  for  the 
development  of  over  a  hundred  years  in  the  changing  conditions 
of  war  and  peace.  Their  next  problem  was  to  coordinate  and 
harmonize  these  apparently  contradictory  and  independent  insti- 
tutions. A  Congress  all-powerful  in  legislation  and  a  president 
all-powerful  in  execution  would  probably  fail  to  express  the  will 
of  the  state.  Legislation  and  administration,  despite  the  theories 
of  Montesquieu,  cannot  be  completely  separated. 

Various  methods  have  been  attempted  to  make  sure  that  the 
will  of  the  legislature  shall  be  carried  into  execution.  In  classic 
times  the  Athenian  assembly  by  direct  votes  not  merely  made 
laws  but  chose  generals  and  directed  their  military  operations. 
Centuries  later  the  New  England  town  meetings  attempted  to 
exercise  similar  functions.  In  both  instances,  however,  as  must 
happen  in  all  cases  when  the  state  or  community  becomes  large 
and  the  administrative  or  executive  functions  become  numer- 
ous and  complex,  this  system  broke  down.  After  long  experience 
and  bitter  failures  England  developed  another  method,  the  English  par- 
cabinet  system  or  parliamentary  government.  By  this  the  execu-  systemtary 
tive  is  but  a  committee  of  the  legislature  to  execute  its  will.  The 


cabinet  holds  office  only  upon  the  sufferance  of  Parliament  and  English 

.  .  .  T,          conditions 

its  every  act  is  subject  to  the  critical  scrutiny  of  that  body.  Few 
limits  are  placed  upon  the  executive  power  in  the  English  con- 
stitution and  none  upon  the  legislative  power.  Parliamentary 
sovereignty  means  truly  that  Parliament  is  legally  supreme,  not 
merely  in  legislation  but  in  administration  as  well.  The  system 
has  worked  well  in  England  because  it  was  the  result  of  develop- 
ment and  was  founded  upon  the  existence  of  political  parties 
which  expressed  in  general  the  main  divergences  of  English 
opinion.  It  has  not  been  so  successful  in  France  because,  as 
President  Lowell  has  shown,  such  conditions  did  not  obtain  there. 
It  might  not  continue  to  operate  with  the  same  smoothness  in 
England  should  the  parties  multiply  or  divide  upon  class  lines. 

In  1787  no  national  parties  existed  in  the  United  States.    At 
best,  political  parties  were  little  understood  by  the  framers  of  the 


Fear  of  politi- 
cal parties 
made  cabinet 
system 
impractical 


The  presi- 
dent's 
message 


The  presi- 
dent's veto 


370    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Constitution,  who  were  familiar  with  them  in  their  revolutionary 
rather  than  in  their  constructive  capacity.  Political  parties  had 
succeeded  in  thwarting  the  government  of  Great  Britain  and 
for  that  very  reason  they  were  feared  in  the  government  about 
to  be  established.  Parties  savored  too  much  of  the  mob  at  one 
extreme  and  of  factions  at  the  other.  To  utilize  them  as  agents 
of  the  government  seemed  impossible.  Therefore  the  English 
system  of  cabinet  government  was  impractical.  The  presidential 
system  which  the  framers  erected  was  made  workable  only  by 
breaking  down  the  theory  of  separation  of  powers  upon  which 
it  was  founded.  Unity  of  action  is  secured  by  making  the  presi- 
dent a  part  of  Congress  and  by  giving  Congress  some  control 
over  the  president. 

In  several  ways  the  Constitution  joins  the  president  and  Con- 
gress. In  legislation  the  president  is  made  a  part  of  Congress 
in  that  he  may  recommend  legislation  and  in  that  his  assent  is 
required  for  every  law,  except  when  a  veto  is  overridden  by  a 
two-thirds  vote.  The  working  of  the  message  and  the  veto  have 
been  discussed,  but  attention  must  be  called  to  them  again  as  a 
means  of  influencing  Congress. 

The  president,  as  the  official  head  of  his  party,  speaking 
through  his  message,  addresses  a  far  larger  audience  than  Con- 
gress. The  public  throughout  the  country  is  more  quickly  moved 
by  the  appeal  of  the  president  than  by  the  words  of  any  other 
man.  Its  emotion  may  be  and  frequently  is  translated  into  action 
in  the  shape  of  pressure  brought  to  bear  on  a  senator  or  repre- 
sentative. An  examination  of  almost  any  number  of  the 
Congressional  Record  will  disclose  numerous  resolutions  from 
organizations,  and  even  private  letters,  asking  for  action  of  a 
certain  sort.  The  shrewd  politicians  in  Congress  know  how  to 
gauge  these  demands.  In  some  cases  they  may  be  ignored,  in 
others  seeming  compliance  must  be  shown  ;  but  when  a  wide- 
spread popular  demand  is  started  by  a  presidential  message  it  is 
dangerous  to  disregard  it.  Few  members  of  Congress  control 
their  constituencies  to  such  a  degree  that  they  can  with  safety 
defy  a  president  of  their  own  party. 

The  veto,  as  well,  serves  as  a  means  to  control  congressional 
legislation.  Only  six  times  within  a  generation  has  Congress 


CONGRESS  AND  THE  CONSTITUTION  371 

been  strong  enough  to  override  the  disapproval  of  a  president. 
But  something  more  than  negative  control  is  necessary  if  the 
president  is  to  carry  through  his  legislative  program.  The  threat 
of  veto  accomplishes  this.  In  1909  President  Taft  abandoned  a 
speaking  tour  and  under  the  threat  of  vetoing  the  Payne-Aldrich 
Tariff  Bill  extorted  certain  modifications  which  made  that  act 
more  to  his  liking.  The  veto  of  such  an  important  measure 
framed  as  the  sole  work  of  a  special  session  of  Congress  would 
have  been  disastrous  in  its  effect  on  the  party.  Likewise  Presi- 
dent Taft  vetoed  the  Army  Appropriation  Bill  of  1912  because 
it  contained  legislation  of  which  he  disapproved,  and  the  army  was 
thus  left  without  resources.  Not  until  three  special  resolutions  con- 
tinuing for  short  periods  the  appropriations  of  the  previous  bill 
had  been  passed  did  Congress  finally  surrender  and  remove  the 
obnoxious  legislation.  So  also  in  1917  President  Wilson  scored  a 
victory  over  the  Senate  by  intimating  that  he  would  veto  the  Food 
Control  Bill  unless  the  clause  establishing  the  obnoxious  congres- 
sional committee  on  war  expenditure  was  removed.  Crises  and 
the  pressure  of  necessity  work  for  executive  success,  and  the  threat 
of  a  veto  often  succeeds  in  gaining  the  desire  of  the  president. 
This  is  particularly  true  in  the  first  years  of  an  administration. 

The  president's  power  of  appointment  is  a  potent  means  of 
executive  control.  Even  the  framers  of  the  Constitution  referred 
to  appointments  to  office  as  "  the  principal  source  of  influence," 
and  Morris  bluntly  declared  that  "  the  loaves  and  fishes  must  be 
used  to  bribe  the  demagogues."  1  Again,  this  is  particularly  true 
in  the  early  years  of  a  president's  term,  when  numerous  appoint- 
ments are  to  be  made.  Congress  may  be  kept  on  its  good 
behavior  and  rendered  compliant  by  the  hope  of  reward.  This 
was  the  course  followed  in  1913,  when  none  but  the  most  neces- 
sary appointments  were  made  until  President  Wilson  had  secured 
the  enactment  of  his  very  extensive  legislative  program.  Oppo- 
sition to  the  president  may  be  punished  by  loss  of  patronage 
which  is  literally  often  the  breath  of  life  to  a  politician. 

The  executive  department  furthermore  communicates  its 
desires  in  legislation  by  the  very  direct  method  of  drafting 

1  H.  J.  Ford,  The  Rise  and  Growth  of  American  Politics,  p.  276,  quoting  from 
Madison's  "  Journal." 


[contrasted 


372    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Administra-  bills  it  wishes  to  have  adopted.  These  administration  measures 
tion  measures  OCCUpV  a  very  different  position  from  the  government  bills  in 
the  English  Parliament.  In  the  Commons,  the  cabinet,  that 
is,  the  executive,  prepares  measures,  introduces  them,  discusses 
commons]  and  Defends  them,  and  pilots  them  through  the  legislative  stages. 
This  control  is  exercised  through  the  actual  or  implied  threat  of 
resignation  and  the  consequent  possibility  of  a  dissolution  of 
Parliament  and  a  general  election,  should  the  measure  be  rejected 
or  amended  against  its.  wish.  In  the  United  States,  administra- 
tion bills  have  no  such  preference.  The  executive  of  some 
department  discovers  some  serious  deficiency,  some  pressing 
need,  or  is  hampered  by  some  previous  legislation.  A  bill  is 
drafted  by  the  department  concerned  and  sent  to  the  proper 
committee,  with  the  request  that  it  be  introduced  and  passed. 
The  bill  must  pass  the  committee,  which  nominally  becomes  its 
sponsor,  and  take  its  chance  of  consideration  along  with  other 
measures,  which  may  be  equally  privileged,1  and  run  the  gauntlet 
of  both  Houses.  If  the  measure  is  of  minor  importance,  or  one 
which  is  not  too  radical,  or  one  on  which  there  can  be  little 
difference  of  popular  opinion,  the  committee  is  generally  success- 
ful in  securing  its  adoption.  More  important  measures  also  on 
which  the  party  has  expressed  its  opinion,  when  backed  by  the 
influence  of  the  president,  are  almost  always  sure  to  be  passed 
with  little  trouble.  Thus,  in  1917  the  Selective  Draft  Bill  was 
drawn  by  the  Secretary  of  War  with  the  approval  of  the  presi- 
dent. It  was  rejected  by  the  chairman  of  the  Committee  on 
Military  Affairs  of  the  House,  and  carried  only  by  the  efforts 
of  the  minority.  Even  then  it  was  subject  to  very  serious  amend- 
ments. In  England  such  a  course  would  have  been  impossible. 
The  cabinet  would  have  refused  to  accept  amendments  of  such 
a  character  and  would  have  compelled  the  adoption  of  its  ideas 
or  would  have  resigned.  In  the  United  States  the  administration 
gets  along  as  best  it  may.  Congress,  and  particularly  the  Senate, 
is  very  sensitive  over  executive  influence  ;  and  it  may  be  sus- 
pected that  the  mere  fact  that  a  measure  is  drafted  by  the  admin- 
istration is  sufficient  to  cause  the  most  searching  criticism  or 
opposition  from  certain  members.  Nevertheless,  the  custom  is 

1  See  Chapter  XIII. 


CONGRESS  AND  THE  CONSTITUTION  373 

quite  firmly  established  and  constantly  becoming  stronger. 
This  is  especially  true  in  time  of  war  when  Congress  passes 
administration  bills  without  question  and  with  little  debate. 

One  method  of  control  is  denied  to  the  executive  department  Executive 
which  is  used  with  great  effect  in  parliamentary  systems  of 
government.  This  is  the  right  to  sit  in  Congress.  It  is  true 
that  the  president  may  address  Congress,  but  never  since  the 
days  of  Washington  has  he  been  questioned  and  given  the 
opportunity  to  defend  his  position.  The  members  of  the  presi- 
dent's cabinet,  however,  who  are  responsible  for  and  better 
informed  concerning  the  legislation  they  desire,  have  no  such 
opportunity.  It  is  true  that  they  may  be  summoned  before  a 
committee  and  examined,  and  that  they  may  defend  or  explain 
their  position,  but  they  cannot  appeal  directly  to  Congress.  In 
January,  1918,  this  was  apparently  circumvented.  The  Senate 
Committee  on  Military  Affairs  was  examining  Secretary  Baker, 
who  asked  for  permission  to  address  a  joint  session  of  both 
Houses.  When  this  was  refused,  he  suggested  that  the  com- 
mittee hearing  might  be  held  in  a  larger  room,  which  made  a 
more  numerous  audience  possible.  The  lengthy  statement  he 
then  made,  uninterrupted  by  questions,  was  fully  and  widely 
reported  in  the  newspapers  and  did  much  to  alter  the  impression 
which  had  been  created  by  the  hostile  examination  he  had  been 
subjected  to.  Without  questioning  the  sincerity  of  the  motives 
of  the  committee  or  defending  the  policy  of  the  department, 
the  incident  is  suggestive  of  the  influence  which  a  resourceful 
secretary  might  exert  on  Congress. 

LEGISLATIVE  CONTROL  OVER  THE  EXECUTIVE 

In  the  exercise  of  the  powers  granted  by  the  Constitution  the 
president  is  supreme.  In  fact  any  purely  executive  act  as  such, 
whether  founded  on  a  constitutional  grant  or  on  a  congressional 
statute,  is  beyond  the  control  of  Congress.  Nevertheless  Congress 
in  several  ways  attempts  to  control  the  president. 

Although  Congress  cannot  summon  the  president  before  it 
and  demand  an  explanation  of  his  acts,  it  may  summon  the 
heads  of  departments  and  other  subordinate  executive  agents 


374    THE  GOVERNMENT  OF  THE  UNITED  STATES 

committee  before  congressional  committees.  These  committee  hearings  and 
investigations  are  for  two  purposes.  The  committees  charged 
with  legislation,  particularly  when  dealing  with  bills  desired 
or  framed  by  officers  of  the  government,  must  understand 
the  necessity  for  such  legislation,  and  thus  give  the  depart- 
ment concerned  an  opportunity  to  state  its  case.  Congress 
may  be  displeased  with  the  action  of  some  official  or  the 
administration  of  some  law  or  the  general  policy  pursued  by  the 
department.  The  committee  having  the  matter  under  its  juris- 
diction, more  rarely  a  special  committee,  summons  the  officers 
before  them  for  the  purpose  of  investigation.  An  example 
of  congressional  investigation,  quite  unique  in  origin,  is  to  be 
[Baiiinger  in-  found  in  the  Ballinger  case.  Secretary  Ballinger  of  the  Depart- 
ment of  the  Interior  was  accused  of  laxity  in  the  administration 
of  the  land  laws.  At  the  request  of  President  Taft  a  joint 
resolution  was  passed  providing  for  an  investigation  of  his  con- 
duct. He  was  exonerated  from  all  charges  of  official  misconduct, 
but,  being  condemned  by  popular  opinion,  resigned  the  following 
year.  In  1918  the  Senate  Committee  on  Military  Affairs  con- 
ducted an  examination,  already  referred  to,  with  the  apparent 
intention  of  forcing  Secretary  Baker  from  office.  In  spite  o; 
senatorial  opposition  and  criticism  both  in  and  out  of  Congress, 
Secretary  Baker  retained  the  support  of  the  president.  Although 
Congress  may  demand  information  and  attempt  to  investigate 
any  officer,  the  president  may  direct  that  officer  not  to  furnish 
the  information  or  to  answer  the  questions.  The  officer  is 
responsible  not  to  Congress  but  to  the  president,  who  appoints 
him  and  may  remove  him.  Congress  may  censure  and  may 
ask  for  removal  but  cannot  compel  the  president  to  obey  its 
demand.  Only  by  the  abolition  of  the  office  by  legislation  or 
by  impeachment  can  the  officer  be  ejected  by  Congress. 
maTcon8-  Although  Congress  cannot  directly  control  executive  action,  it 

troi  the  can  do  a  great  deal  indirectly  by  means  of  legislation.  Only  a 
indirectly  small  part  of 'the  executive  activities  are  founded  upon  constitu- 
tional grants.  Here  Congress  is  very  influential.  It  may  refuse 
to  pass  bills  giving  the  president  greater  or  new  executive 
powers.  In  general  legislation  it  has  been  seen  that  the  president, 
with  the  prestige  of  party  leader,  can  sometimes  arouse  public 


CONGRESS  AND  THE  CONSTITUTION  375 

opinion  so  that  Congress  will  pass  the  desired  law.    To  refuse  (i)  by  refus- 

to  follow  the  accredited  leader  would  savor  too  much  of  mutiny 

and  would  furnish  too  good  a  point  of  attack  for  opponents. 

Not  so  with   bills   designed   to   increase  the   purely  executive 

power.    Here,  as  was  seen  in  1918  in  the  case  of  the  Overman 

Bill,  framed  to  allow  the  president  to  alter  and  combine  the 

various  executive  agencies  for  the  more  efficient  prosecution  of 

the  war,  even  the  members  of  the  president's  own  party  felt 

safe  in  attacking  the  measure  on  the  ground  that  it  involved 

an  unwise  extension  of  the  executive  power. 

Congress  may  also  thwart  the  president  and  control  his  action  (a)  by  refus- 
by  the  passage  of  legislation  requiring  the  adoption  of  a  certain  legislation8 
policy  or  directing  the  performance  of  certain  acts.  It  is  true 
that  the  president's  approval  must  be  secured  for  the  legislation 
unless  Congress  is  prepared  to  override  his  objections,  but 
oftentimes  such  directions  are  found  in  a  section  contained  in 
a  measure  otherwise  satisfactory.  Rather  than  lose  the  advan- 
tage of  the  whole  piece  of  legislation,  the  president  may  accept 
the  objectionable  clause.  The  executive  departments  of  the 
government  are  all  founded  upon  acts  of  Congress  not  always 
wisely  conceived.  Thus  President  Taft  disapproved  of  the 
creation  of  the  Department  of  Labor ;  and  President  Wilson 
has  been  greatly  hampered  by  the  rigid  legislative  distribution 
of  functions  in  many  departments  and  bureaus.  What  Congress 
has  enacted  only  Congress  can  repeal.  President  Roosevelt, 
however,  circumvented  congressional  action  in  the  case  of  the 
Panama  Commission  by  vesting  all  the  authority  in  Colonel 
Goethals  and  ordering  the  two  other  commissioners  to  follow 
his  directions. 

Appropriation  bills  give  Congress  an  opportunity  to  review  (3)  by  appro- 
trie  acts  of  the  executive  departments.  This  review  may  be 
searching,  conducted  in  good  temper,  and  may  disclose  the 
necessity  for  improvements.  It  may,  on  the  other  hand, 
degenerate  into  petty  criticism  and  personal  attacks.  Of  such 
a  nature  was  the  Army  Appropriation  Bill  of  1912,  which  con- 
tained a  clause  which  was  designed  to  prevent  General  Wood, 
though  he  was  not  mentioned  by  name,  from  again  becoming 
Chief  of  Staff  in  the  army  in  time  of  peace.  The  Sundry  Civil 


[Riders] 


(4)  by  im- 
peachment 


in  recent 
years  the 
executive 
is  stronger 
than  the 
legislature 


376    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Appropriation  Bill  of  1913,  already  mentioned,  was  an  obvious 
attempt  to  control  executive  action.  In  the  bill  was  a  proviso 
that  none  of  the  money  granted  should  be  used  for  the  prosecu- 
tion of  labor  or  agricultural  organizations  on  account  of  alleged 
violations  of  the  anti-trust  laws.  Both  these  bills  were  vetoed 
by  President  Taft,  and  Congress  was  forced  to  remove  the 
objectionable  clauses.  Appropriation  bills  again  attempt  to 
control  executive  action  by  including  provisions  for  general 
legislation.  This  practice"  of  attaching  riders  has  already  been 
discussed.1  On  the  whole  it  may  be  asserted  that  in  a  struggle 
between  the  president  and  Congress  over  a  general  appropriation 
bill  carrying  riders,  the  president  will  win.  Lack  of  appropria- 
tions would  stop  the  wheels  of  government,  which  is  unthinkable. 
Consequently  resolutions  omitting  the  controversial  matter  are 
passed,  and  the  president  wins  the  point  temporarily.  The 
pressure  of  opinion  generally  comes  to  his  aid,  and  Congress 
drops  the  obnoxious  clause.  The  contention,  however,  may  be 
revived  as  a  separate  measure  with  somewhat  better  chance 
of  success.  f 

The  last  and  last-used  means  of  control  is  impeachment. 
Impeachment  of  the  president  for  the  use  of  his  executive 
powers  in  a  manner  displeasing  to  Congress  is  almost  impossible 
politically.  Impeachment  of  subordinates  for  anything  less  than 
a  serious  crime  is  unthinkable.  As  Lord  Bryce  has  well  said, 
"a  steam  hammer  is  not  used  to  crack  nuts." 

Comparing  the  relative  powers  of  the  executive  and  legislative 
departments,  it  may  be  asserted  safely  that  the  president  over- 
shadows Congress.  Lord  Bryce  in  1888  wrote  of  the  president 
that  "he  is  strong  for  defense  if  not  for  attack."2  Recent 
experience  has  proved,  however,  that  the  president,  through 
emphasizing  his  position  as  the  leader  of  his  party,  has  become 
strong  enough  to  force  his  will  upon  even  the  most  recalcitrant 
members  of  the  party.  The  administrations  of  McKinley, 
Roosevelt,  Taft,  and  Wilson,  covering  over  a  quarter  of  a  cen- 
tury, give  ample  evidence  of  the  changed  position  of  the  presi- 
dent. These  four  presidents  had  most  divergent  characteristics 
and  personalities,  and  made  very  different  kinds  of  popular 

1  See  p.  219.          2  American  Commonwealth  (rev.  ed.),  Vol.  I,  p.  226. 


CONGRESS  AND  THE  CONSTITUTION  377 


appeal,  but  they  had  this  in  common  —  they  all  dominated  Con- 
gress and  obtained  from  it,  often  after  a  struggle,  practically 
all  they  desired.  That  this  should  be  true  of  the  administrations 
of'McKinley  and  the  second  administration  of  Wilson  is  not 
remarkable,  for  during  these  terms  the  United  States  was 
engaged  in  war.  Nor  is  it  strange  that  the  Democratic  party 
supported  President  Wilson  in  his  first  administration,  for  the 
Democrats  had  wandered  in  the  wilderness  for  sixteen  years 
and  came  to  power  pledged  to  a  very  definite  program.  But  in 
the  administration  of  President  Taft  a  very  different  condition 
existed.  The  President,  by  temperament,  habit,  and  training, 
would  be  expected  to  maintain  the  old  constitutional  relations 
which  existed  in  previous  administrations.  At  the  end  of  the 
long  session  of  his  first  Congress  he  had  forced  through  every 
measure  he  demanded.  "  No  such  array  of  *  inspired  '  or  dictated 
legislation  had  ever  issued  from  the  halls  of  Congress  as  that 
passed  in  June,  1910."  1  This  was  the  more  to  be  wondered  at 
because  the  Republican  party  had  already  shown  unmistakable 
signs  of  the  split  which  was  to  divide  it.  It  should  be  remem- 
bered and  emphasized  that  this  legislation  was  not  personal  but 
was  the  passage  of  laws  demanded  by  strong  popular  opinion. 
It  was  the  president  as  spokesman  of  his  party  dominating 
Congress  rather  than  the  executive  usurping  the  functions  of 
the  legislature. 

Finally,  it  should  be  remembered  that  every  law  that  is  passed  Executive 
by  Congress  is  executed  by  the  president  and  his  subordinates,  according  t^T 
Congress  may  grant  or  withhold  powers,  may  direct  the  perform-  itsdiscretion 
ance  of  certain  things,  but  in  the  application  of  every  law  there 
are  numerous  questions  where  judgment  enters.    Judgment,  or 
the  discretionary  power,  is  the  prerogative  of  the  executive  and 
is  beyond  the  reach  and  control  of  either  the  courts  or  Congress. 
In  this  sphere  and  in  these  acts  the  president  and  his  subordinates 
are  responsible  solely  to  the  electorate.    In  countries  where  par- 
liamentary government  is  established  every  executive  act,  whether 
administrative  or  political,  is   subject  to  the   judgment   of  the 
legislature,  which  chooses  the  executive.    In  the  United  States 
the  president,  holding  office  for  four  years,  cannot  be  questioned 

1  J.  F.  Young,  The  New  American  Government  and  its  Work,  p.  18. 


378    THE  GOVERNMENT  OF  THE  UNITED  STATES 

or  removed  by  the  legislature  "except  by  impeachment,  until  the 
expiration  of  his  term.  So  notwithstanding  the  constitutional 
checks  upon  the  legislative  power  of  the  president,  he  is  singu- 
larly free  in  the  enforcement  of  the  laws.  Congress  may  refuse 
to  pass  the  legislation  desired  or  deny  the  appropriations  asked 
for,  but  once  the  law  is  passed  or  the  appropriation  made  the 
execution  is  in  the  hands  of  the  president.  He  may  be  harassed 
by  but  he  need  not  fear  Congress.  He  may  be  forced  to  forego 
some  parts  of  his  program,  but  he  remains  in  office  free  to  use 
his  judgment  in  the  execution  of  the  laws  and  to  give  the  tone 
he  desires  to  his  administration. 


r 


CHAPTER  XV 

TIE  JUDICIAL  SYSTEM  OF  THE  UNITED  STATES  l 

It  is  sometimes  incorrectly  said  that  by  the  article  on  the  courts  estab- 
judiciary  the  courts  are  established  as  an  independent  depart-  congress 
ment  of  the  government.  Or,  to  put  it  more  popularly,  the  Con- 
stitution creates  the  courts.  Such  is  not  the  case.  It  is  true  that 
the  Constitution  provides  that  the  judicial  power  shall  be  vested 
in  one  Supreme  Court  and  in  inferior  courts,  but  by  this  pro- 
vision the  courts  do  not  come  ipso  facto  into  existence.  The 
action  of  both  the  executive  and  legislative  departments  is 
necessary.  In  the  first  place  the  number  and  compensation  of 
the  justices  of  the  Supreme  Court  must  be  determined  by  Con- 
gress and  fixed  by  statute.  Even  after  the  statute  is  passed  the 
president,  with  the  advice  and  consent  of  the  Senate,  must 
appoint  the  judges.  Thus,  since  the  organization  and  composi- 
tion of  the  court  are  dependent  upon  Congress  and  the  president, 
it  is  possible  for  Congress  to  increase  the  number  of  judges,  and 
with  the  connivance  of  the  president  to  "pack"  the  court  so 
that  a  majority  out  of  sympathy  with  Congress  may  be  over- 
whelmed. Or,  on  the  other  hand,  Congress  may,  as  it  did  dur- 
ing the  administration  of  Johnson,  enact  that  vacancies  should 
not  be  filled  and  thus  reduce  the  number  of  justices.  Such 
actions,  however,  would  be  unconstitutional  in  the  sense  that 
they  amounted  to  a  violation  of  the  spirit  of  the  Constitution  ; 
but  that  they  would  be  illegal,  in  the  sense  that  they  were  open 
to  punishment,  would  be  difficult  of  proof. 

1  The  judicial  power  of  the  United  States  shall  be  vested  in  one  Supreme 
Court,  and  in  such  inferior  courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish.  The  judges,  both  of  the  Supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behavior,  and  shall,  at  stated  times,  receive 
for  their  services  a  compensation,  which  shall  not  be  diminished  during  their 
continuance  in  office.  —  The  Constitution  of  the  United  States,  Article  III, 
Sect,  i 

379 


Congress  con- 
trols appeals 


380    THE  GOVERNMENT  OF  THE  UNITED  STATES 

In  another  way  Congress  may  control  the  Supreme  Court.  As 
will  be  shown  when  the  jurisdiction  of  the  courts  is  discussed, 
Congress  has  power  to  extend  or  to  limit  the  appellate  jurisdic- 
tion of  the  Supreme  Court,  and  has  not  hesitated  to  use  this 
power.  Congress  might  allow  appeals  in  all  cases  and  so  over- 
whelm the  court.  Congress  might  vest,  and  under  this  power 
has  vested,  the  final  decision  of  certain  cases  in  the  inferior 
courts,  generally,  however,  to  relieve  the  Supreme  Court  of  a 
part  of  its  burden  which  at  times  has  threatened  to  overwhelm 
it.  In  one  instance,  however,  Congress  by  statute  took  from  the 
Supreme  Court,  whose  decision  it  feared,  the  jurisdiction  of  a 
case  already  under  consideration  and  vested  the  final  decision  in 
an  inferior  court  whose  decision  was  agreeable  to  Congress.  To 
this  rather  high-handed  proceeding  the  Supreme  Court  assented 
and,  in  dismissing  the  case,  said  : 

We  are  not  at  liberty  to  inquire  into  the  motives  of  the  legislature. 
We  can  only  examine  into  its  power  under  the  Constitution ;  and  the 
power  to  make  exceptions  to  the  appellate  jurisdiction  of  this  court  is 
given  by  express  words.1 

Concerning  the  inferior  courts  the  power  of  Congress  is  even 
more  extensive.  These  courts  are  ordained  and  established  by 
congressional  act  and  therefore  at  any  time  may  be  abolished  by 
statute.  Congress  has  several  times  exercised  this  power.  The 
earliest  and  most  recent  instances  are  due  perhaps  to  political  or 
partisan  motives.  In  1802  the  Jeffersonian  Republicans  abolished 
the  system  of  Circuit  Courts  established  by  the  Federalists  in  the 
previous  year.  And  likewise  the  Democrats  in  1913  abolished 
the  Commerce  Court.  In  1911,  however,  both  parties  by  joint 
action,  reorganized  the  whole  system  of  federal  courts  and 
abolished  the  Circuit  Courts,  an  action  taken  on  the  recommen- 
dation of  the  Bar  Association  from  unpartisan  motives.  In  cases 
where  courts  are  abolished,  the  judges  are  transferred  to  other 
courts  in  order  that  their  constitutional  rights  of  office  and  com- 
pensation may  be  preserved. 

The  power  of  Congress  to  determine  the  jurisdiction  of  the 
inferior  courts  is  greater  than  in  dealing  with  the  Supreme 

1  Exparte  McCardle,  7  Wall.  506-514. 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES      381 


Court.  In  only^  three  instances  is  the  jurisdiction  of  the 
Surjreme  Court  originaT  TrPali  other  cases  which  may  come 
befoTelhe  UmFed  States'  courts  —  and  these  include  the  applica- 
tion of  the  la\ys  of  the  United  States  —  Congress  may  designate 
which  cour^^halLhaye^  jurisdiction,  whetheritsnall  be  exclu- 
sive and  whether  it  shall  be  final.  It  is  thus  possible,  as  has 
been  done  in  the  Judicial  Code  of  1911,  to  extend  the  jurisdic- 
tion of  the  lowest  court  and  to  limit  the  appeals  to  next  higher 
courts  and  the  Circuit  Court  of  Appeals.  It  should  be  said, 
however,  that  this  was  done  not  so  much  to  limit  the  jurisdiction 
of  the  Supreme  Court  as  to  relieve  the  congestion  and  to  make 
the  final  decision  of  the  case  more  speedy.  Nevertheless,  this 
action  is  an  instance  of  the  legitimate  power  of  Congress  over 
the  courts,  and  should  go  far  to  dispel  the  fear  sometimes 
expressed  of  "  the  tyranny  of  an  appointed  judiciary."  Congress, 
not  the  courts,  makes  the  laws  under  which  the  courts  operate. 

The  judges  of  the  Supreme  Court  are  appointed  by  the  presi-  Appointment 
dent  with  the  advice  and  consent  of  the  Senate.    By  custom,  ° 
the   judges   of  the   inferior  courts   are  likewise   so  appointed, 
although  Congress  might  by  law  vest  their  appointment  in  the 
president  alone,  or  in  the  higher  courts,  or  in  any  department. 
The  nearest  that  Congress  has  come  to  this  was  to  allow  the 
Chief  Justice  to  assign  the  judges  of  the  Circuit  Court  to  the 
Commerce  Court.   But  in  every  instance  the  original  appointment 
is  made  by  the  president  with  the  advice  of  the  Senate. 

The  appointing  power  has  been  used  and  doubtless  is  often  influence  of 
used  for  political  purposes.    When  the  Jeffersonian  Republicans  appointments 
came   into   power    in    1800,    the    courts   were   overwhelmingly 
Federalist  in  tone,  but  Jefferson  and  his  successor,  by  filling  the  court 
vacancies  as  they  occurred,  slowly  changed  their  attitude  to  the 
point  of  view   held  by  the   dominant   party.    At  the  close  of 
President  Taft's  administration  all  but  one  of  the  judges  of  the 
Supreme  Court  had  been  appointed  by  Republican  presidents 
and  the  majority  by  President  Taft.     It  thus  may  happen  not 
merely  that  one  party  may  be  overwhelmingly  represented  but 
that  the  school  of  thought  of  a  single  president  may  be  perpetu- 
ated long  beyond  his  term  of  office.    This  was  particularly  true 
in  the'  case  of  the  appointment  of  John  Marshall  by  John  Adams, 


382    THE  GOVERNMENT  OF  THE  UNITED  STATES 

the  last  Federalist  president.  Marshall,  as  Chief  Justice  from 
i  So  I  to  1835,  held  the  court  to  the  Federalist  view  of  the 
Constitution  throughout  the  Jeffersonian  period  and  into  the 
Jacksonian  period. 

In  the  appointment  of  the  judges  of  the  Circuit,  District,  and 
other  United  States  courts,  the  same  motives  are  operative,  and 
since  t^ie  Position  °^  tne  Jucfees  is  not  so  conspicuous,  it  may 
be,  as  is  sometimes  charged,  that  less  worthy  motives  are  the 
compelling  ones.  But  whatever  may  be  charged  in  the  heat  of 
conflict,  the  fact  remains  that,  with  but  one  or  two  exceptions 
and  those  in  previous  generations,  the  justices  of  the  Supreme 
Court  have  never  been  accused  of  political  bias.  With  a  slightly 
larger  number  of  exceptions,  the  same  assertion  would  hold  true 
of  the  justices  of  the  other  courts.  But  although  partisan  par- 
tiality is  seldom  shown,  charges,  rather  loosely  made,  have  been 
leveled  against  the  judiciary  on  the  ground  of  personal  or  class 
interest.  In  an  attempt  to  correct  or  at  least  to  neutralize  this 
by  publicity,  an  amendment  was  added  in  the  House  to  the 
appropriation  bill  of  1913,  requiring  the  president  to  make 
public  the  names  of  those  recommending  any  judge  he  might 
appoint.  Although  it  may  be  possible  to  ignore  this  provision, 
as  President  Cleveland  did  an  analogous  resolution  on  the  part 
of  the  Senate,1  the  spirit  which  prompted  the  action  is  signifi- 
cant of  the  present  critical  attitude  towards  the  judiciary.  That 
this  distrust  is  warranted  cannot  be  demonstrated ;  in  fact,  con- 
sidering the  large  number  of  federal  judges,  the  vast  number  of 
cases  before  them,  and  the  complexity  of  the  issues  presented 
to  them  for  consideration,  the  number  of  instances  for  legitimate 
dissatisfaction  is  surprisingly  small.  Moreover,  as  compared  with 
the  judiciary  of  the  states,  the  federal  courts  are  less  harshly 
treated  by  the  critics  and  their  excellences  more  ungrudgingly 
recognized. 

All  judges  of  the  United  States,  whether  of  the  Supreme  or 
inferior  courts,  hold  their  offices  during  good  behavior.  It  is 
true  that  by  law  the  justices  of  the  Supreme  Court  may  retire 
upon  a  pension  at  the  age  of  seventy-five,  but  this  is  not  obliga- 
tory. Indeed,  it  was  rumored  that  a  recent  chief  justice  delayed 
1  See  pp.  187-188. 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     383 


his  retirement  because  he  feared  that  the  well-known  attitude  of  NO  retiring 
the  president  might  be  reflected  in  the  appointment  of  his  suc- 
cessor. Until  a  justice  reaches  the  retiring  age  fixed  by  Con- 
gress, he  cannot  retire  on  account  of  ill  health,  or  disability 
without  forfeiting  his  salary,  a  fact  which  led  Congress,  in  the 
case  of  Justice  Moody,  to  pass  a  special  act  granting  him  a 
retiring  allowance.  Federal  judges  can  be  removed  only  by  subject  omy 
impeachment.  This,  however,  has  been  seldom  resorted  to,  and 
still  less  successfully  prosecuted.  Proceedings  have  been  initiated 
only  once  against  a  Supreme  Court  justice  —  when  the  Jeffer- 
sonian  party  was  struggling  to  control  the  court  —  and  then 
they  were  unsuccessful.  Judge  Pickering  of  the  New  Hampshire 
District  became  insane,  and  impeachment  on  the  ground  of 
violence  furnished  the  only  method  of  removal.  Two  other 
federal  judges,  the  last  in  1913,  have  been  convicted  and 
removed,  and  several  have  resigned  rather  than  face  trial. 


THE  ORGANIZATION  OF  THE  UNITED  STATES  COURTS 

By  the  revised  judicial  code  of  191 1  the  judicial  power  of  the 
United  States  is  vested  in  a  series  of  three  courts  —  the  District 
Court,  the  Circuit  Court  of  Appeals,  and  the  Supreme  Court  — 
and  in  three  special  courts  —  the  Court  of  Claims,  the  Court  of 
Customs  Appeals,  and  the  Commerce  Court,  which  was  abolished 
in  1913.  In  addition,  there  are  special  courts,  like  courts  of  the 
District  of  Columbia  and  the  Territorial  Courts. 

The  lowest  court  in  the  series  is  the  District  Court.  For  The  District 
this  purpose  the  United  States  is  divided  into  eighty-one  dis- 
tricts, each  state  containing  at  least  one,  and  the  larger  states 
several.  To  each  district  there  is  appointed  by  the  president, 
with  the  advice  and  consent  of  the  Senate,  a  district  judge. 
There  is  also  appointed  a  district  attorney,  or  prosecuting 
officer,  with  such  assistants  as  may  be  necessary,  who  act  under 
the  direction  of  the  Attorney-General  of  the  United  States. 
A  United  States  marshal,  with  such  assistant  marshals  as  are 
necessary,  acts  as  the  executive  officer  of  the  court,  and  may 
call  upon  the  military  force  of  the  United  States,  if  necessary, 
to  aid  him  in  the  performance  of  his  duties. 


384    THE  GOVERNMENT  OF  THE  UNITED  STATES 

To  this  District  Court  is  given  all  the  original  jurisdiction  of 
the  United  States,  with  a  few  exceptions :  ca^sinyolving  am- 
bassadors and  other  public  ministers  and  cases  to  Which  a  state 
is  a  party  are  considered  directly  byjthe  Supreme  Court ;  also 
certain  classes  of  special  or  technical  cases  are  prosecuted  in 
one  of  the  special  courts,  and  suits  against  the  United  States 
for  money  damages  are  tried  before  the  Court  of  Claims,  whose 
award  is  in  the  nature  of  a  recommendation  to  Congress  for  an 
appropriation.  Thus  the  District  Court  has  all  the  criminal 
jurisdiction  arising  under  the  federal  laws  of  Congress,  and  all 
cases  in  admiralty  and  maritime  jurisdiction  now  extending  to 
all  inland  waters  which  in  any  way  may  be  utilized  for  inter- 
state commerce.  And  perhaps  even  more  far-reaching  than  the 
above,  in  the  District  Court  originate  all  cases  to  which  citizens 
of  different  states  are  parties.  Moreover,  a  suit  already  begun 
in  the  state  courts  may  be  transferred  to  the  District  Court,  if 
it  can  be  shown  that  it  is  one  in  which  the  District  Court  could 
gain  jurisdiction.  It  is  further  to  be  noted  that  the  courts  of 
the  United  States,  and  thus  the  District  Court,'  act  not  merely 
as  courts  of  law  but  as  courts  of  equity,  and  have  power  to 
issue  the  writ  of  injunction  and  to  punish  for  refusal  to  obey 
by  means  of  proceedings  for  contempt  of  court.  - 

By  the  first  judiciary  act  of  1789  a  Circuit  Court  was  estab- 
lished to  hear  cases  of  appeal  from  the  District  Court  and  to 
take  cognizance  of  more  important  cases  than  were  given  to 
the  District  Court.  The  justices  of  the  Supreme  Court  were 
assigned  to  this,  and  each  was  required  to  hold  two  circuits  a 
year  in  each  district  of  his  circuit,  together  with  another  justice 
of  the  Supreme  Court  and  the  judge  of  the  District  Court, 
which  was  included  in  the  circuit.  The  justices  complained  of 
this  double  service,  and  in  1801  a  distinct  class  of  circuit  jus- 
tices was  created.  This  act  was  repealed  in  the  following  year, 
and  the  justices  of  the  Supreme  Court  went  on  circuit  until 
1869  when  the  country  was  divided  into  nine  circuits,  and  nine 
circuit  justices  were  appointed.  In  1891  it  was  found  that  the 
Supreme  Court  was  nearly  four  years  behind  its  docket,  and  a 
new  court  was  created  to  relieve  the  Supreme  Court  of  its 
burden  of  cases.  This  was  called  the  Circuit  Court  of  Appeals, 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     385 

With  the  establishment  of  the  Circuit  Court  of  Appeals  and 
the  increase  of  the  number  of  cases  which  might  be  brought 
before  the  District  Court,  the  importance  of  the  Circuit  Court 
declined.    Therefore,  by  the  judiciary  act  of  1911,  the  Circuit 
Court  was  abolished,  and  the  jurisdiction  of  the  cases  which  The  circuit 
came  before  it  was  given  to  the  District  Court.    Thus  the  Dis-  Shed^xgil" 
trict  Court  has  become  the  most  important  court  of  first  instance 
in  the  United  States,  replacing  the  old  Circuit  Court. 

The  act  establishing  the  Circuit  Court  of  Appeals  as  amended  The  circuit 

Court  of 

by  the  act  of  1911  groups  the  states  into  nine  circuits.  For  Appeals 
three  of  these  circuits  four  circuit  judges  are  appointed  ;  for  one 
circuit,  two ;  and  for  the  remaining  circuits,  three.  These  circuit 
judges,  together  with  the  justices  of  the  Supreme  Court,  and 
the  judges  of  the  District  Court,  which  is  included  in  the  circuit, 
form  the  Circuit  Court  of  Appeals.  Any  two  of  the  judges 
may  sit  —  in  practice  the  justices  of  the  Supreme  Court  never 
attend  —  and  take  cognizance  of  appeals  from  the  District  Court. 
The  court  has  no  original  jurisdiction  but  very  wide  appellate 
power.  All  cases  decidecTby  the  District  Court  are  reviewable 
by  the  CircTnLTTourt  of  Appeals  upon^writ^  of  error,  except 
certain  classes  of  cases  which  are  carried  directly  to  the  Supreme 
Court.  In  addition,  it  hears  appeals  in  cases  of  bankruptcy  and 
in  injunction  proceedings,  and  appeals  from  the  territorial  court  of 
Alaska.  More  important,  however,  than  its  wide  appellate  juris- 
diction is  the  fact  that  its  judgment  is  final  in  a  large  number 
of  cases.  In  all  cases  in  which  the  jurisdiction  of  the  United 
States  courts  was  obtained  on  the  ground  of  diverse  citizenship, 
and  in  cases  arising  from  patent,  copyright,  or  revenue  laws,  and 
in  all  cases  in  admiralty,  except  prize  cases,  the  jurisdiction  of  the 
Circuit  Court  of  Appeals  is  final.  But  the  Supreme  Court  may, 
upon  petition  of  either  party,  if  it  thinks  advisable,  cause  any 
case  in  which  the  judgment  of  the  Circuit  Court  of  Appeals 
is  final  to  be  brought  before  it,  there  to  be  reviewed  and 
determined. 

The  Supreme  Court  of  the  United  States  consists  of  a  chief  The  supreme 
justice  and,  at  present,  eight  associate  justices.    As  has  been 
pointed  out,  the  Constitution  provides  that  such  a  court  shall  be 
established,  but  leaves  to  Congress  the  duty  of  organizing  the 


386    THE  GOVERNMENT  OF  THE  UNITED  STATES 

court  and  determining  the  number  of  justices.  Acting  upon 
this  power,  Congress  has  at  various  times  increased  the  number 
of  justices  and  once,  to  prevent  appointments  by  Andrew  Johnson, 
enacted  that  no  vacancies  should  be  filled  until  the  number  of 
justices  should  be  reduced  to  seven.  The  compensation  of  the 
judges  has  been  altered,  always,  however,  by  additions,  and  at 
present  the  Chief  Justice  receives  $15,000  and  the  Associate 
justices  $14,500.  The  Court  always  sits  at  noon  in  Washington, 
in  the  old  Senate  chamber,  and  preserves  considerable  form 
and  dignity. 

The  jurisdiction  of  the  Supreme  Court  is  determined  partly 
supreme**      by  the  Constitution  and  partly  by  statute.    Its  original  jurisdiction 


*s  ^xed  by  the  Constitution,  and  includes  only  two  classes  of 
cases,  cases  in  which  either  ambassadors  or  stetej3_jm^j)arties. 
(a)  Appellate  Its  appellate  jurisdiction,  however,  is  wide7~  By  the  Constitution 
it  covers  all  cases  over  which  the  United  States  courts  could 
take  jurisdiction  "  with  such  exceptions  and  under  such  regula- 
tions as  the  Congress  shall  make."  Congress  has  made  frequent 
regulations  and  exceptions,  some  of  which  have  been  noted,  but 
the  appellate  jurisdiction  is  still  very  wide  and  of  surpassing 
importance.  In  general  it  includes  all  cases  from  state,  courts 
where  a  national  law  or  right  has  not  been  upheld,  or  where  a 
state  law  or  right  has  been  supported  against  the  claim  of  a 
national  one  ;  all  cases  in  which  the  jurisdiction  of  the  District 
Court  is  questioned  ;  all  cases  where  the  construction  of  the 
Constitution  of  the  United  States,  or  any  law  or  treaty,  is  involved, 
or  a  state  constitution  or  law  is  claimed  to  be  in  contravention  of 
the  Constitution  of  the  United  States  ;  and  all  cases  where  the 
decision  of  the  Circuit  Court  of  Appeals  is  not  final.  In  all  cases 
where  such  judgment  is  final  the  Supreme  Court  may  review 
such  decision  and  pass  judgment.  In  addition,  under  certain 
conditions,  appeals  may  be  taken  from  the  Court  of  Customs 
Appeals  and  Court  of  Claims;  also  from  the  District  Court 
when  sitting  as  a  *Prize  Court,  and  from  the  District  Courts  of 
Hawaii,  Porto  Rico,  Alaska,  the  Philippine  Islands,  and  the  Dis- 
trict of  Columbia  in  certain  cases.  Thus  the  final  decision  of  a 
constitutional  question,  the  constitutionality  of  either  a  state  law 
or  a  congressional  statute,  may  be  appealed  and  brought  before 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     387 

the  Supreme  Court.    It  acts  as  the  final  arbiter  in  cases  between 
states  and  is  the  final  interpreter  of  the  Constitution. 

It  is  a  principle  of  law  that  a  sovereign  state  cannot  be  sued  The  court 
by  its  citizens  without  its  consent.  Nevertheless,  most  govern- 
ments provide  some  tribunal  by  which  the  claims  against  them 
may  be  adjusted.  In  some  states  suits  for  certain  claims  are  by 
statute  allowed  to  be  brought  in  the  ordinary  courts  of  law;  in 
others  commissions  or  committees  determine  the  amount  due  to 
the  claimant  and  the  legislature  appropriates  the  money.  In  1887 
the  Tucker  Act  established  a  court  consisting  of  a  presiding  judge 
and  four  associate  justices,  to  take  jurisdiction  of  certain  classes 
of  claims  against  the  United  States.  All  claims  founded  upon 
the  Constitution  or  laws  of  the  United  States  or  upon  the  regu- 
lations of  an  executive  department,  or  cases  of  contract,  express 
or  implied,  with  the  government,  and  actions  of  damages  under 
certain  restrictions,  may  be  brought  before  this  court ;  provided, 
however,  that  no  claim  for  a  pension  or  claims  arising  out  of 
the  Civil  War,  nor  any  claim  which  has  been  acted  upon 
adversely,  can  be  brought  before  the  court. 

In  several  particulars  this  court  differs  from  the  other  United  The  court  of 
States  courts.  It  is  a  judicial  principle  that  no  court  shall  issue  unuk^other 
a  decree  which  it  cannot  enforce.  Since  money  cannot  be  drawn  <;ourts' is. 

J  dependent  on 

from  the  treasury  of  the  United  States  except  upon  the  appro-  congress  for 

.     .  „.  t     .  •    'i  f  tne  execution 

pnation  of  Congress,  the  judgments  of  this  court  are  dependent  of  its  decrees 
upon  the  action  of  the  legislative  department  of  the  government. 
What  actually  occurs  is  that  Congress  appropriates  a  sum  suffi- 
cient to  satisfy  all  the  decrees  of  the  court  made  within  a  cer- 
tain time,  and  from  this  fund  the  various  judgments  of  the  court 
are  paid. 

In  another  respect  the  court  sustains  a  peculiar  relation  to  The  court  of 
the  political  branch  of  the  government.   Any  department  of  the 
government  or  either  branch  of  Congress  may  refer  any  claim, 
except  a  pension,  to  the  court  for  determination.     If  the  court  gate  claims 
shall  find  that  the  claim  is  one  over  which  it  has  jurisdiction  by 
law,  it  proceeds  to  dispose  of  it  in  the  ordinary  manner ;  other- 
wise, after  hearings,  it  transmits  its  findings  and  conclusions  to 
the  department  concerned  or  to  Congress.    These  conclusions 
are  not  in  the   nature   of  judgments  but  merely  contain  the 


The  Court  of 

Customs 

Appeals 


The  Com- 
merce Court 


388    THE  GOVERNMENT  OF  THE  UNITED  STATES 

opinion  of  the  court,  which  may  or  may  not  be  followed  by  Con- 
gress in  its  subsequent  action.  In  this  particular  it  would  seem 
that  the  court  was  acting  outside  of  its  purely  judicial  function 
and  performing  duties  which  the  other  federal  courts  have 
refused  to  undertake.  The  explanation  probably  is  that  the 
Court  of  Claims  is  not  to  be  regarded  as. a  court,  but  is  more 
like  a  commission  employed  by  the  government  to  determine 
its  liabilities.  The  fact  that  in  many  instances  it  has  adopted  a 
judicial  form  of  procedure  does  not  completely  endow  it  with 
a  judicial  character. 

The  Tariff  Act  of  1909  established  a  Court  of  Customs 
Appeals,  consisting  of  a  presiding  judge  and  four  associate  jus- 
tices. Briefly,  the  jurisdiction  of  this  court  is  to  review  by  appeal 
the  final  decision  by  a  Board  of  General  Appraisers  in  all  cases 
as  to  the  construction  of  the  law  and  the  facts  respecting  the 
classification  of  merchandise. and  the  rate  of  duty  imposed^  The 
judgments  and  decrees  of  this  court  are  final  in  all  such  cases, 
unless,  however,  the  Supreme  Court  by  a  writ  ^f  certiorari 
shall  remove  the  case  to  itself.  The  object  of  the  establishment 
of  the  court  was  twofold.  It  relieved  the  District  and  Circuit 
Courts  of  the  consideration  of  a  large  number  of  technical  cases 
which  they  were  not  altogether  competent  to  decide.  Second,  it 
established  uniform  rules  for  classification  and  made  possible 
more  uniform  interpretation  of  the  law  than  it  was  possible  to 
obtain  from  the  numerous  District  Courts.  Dealing  as  it  does 
with  a  particular  class  of  technical  questions  and  interpreting 
and  applying  but  one  set  of  acts  — the  tariff  acts  —  it  resembles 
more  nearly  the  Court  of  Claims  than  it  does  the  other  courts" 
of  the  United  States. 

By  act  of  Congress,  1910,  a  special  court  was  established, 
known  as  the  Commerce  Court.  This  court  was  to  consist  of 
a  chief  judge  and  four  associate  justices,  in  the  first  instance 
appointed  by  the  president  for  five,  four,  three,  two,  and  one 
years,  respectively,  but  providing  that  vacancies  should  be  filled 
by  designation  from  the  list  of  circuit  justices  by  the  Chief 
Justice  of  the  Supreme  Court.  The  jurisdiction  of  this  court 
was  to  include  the  enforcement  of  the  rules  of  the  Interstate 
Commerce  Commission  and  appeals  from  such  rules,  together 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     389 


with  the  trial  of  rg^ps  Q£  rebating,  and  other  actions  concerning 
commerce.  All  final  judgments  were  made  reviewable^By  the 
Supreme  Court,  on  appeal,  provided  such  appeal  did  not  act  as 
a  stay  in  the  judgment,  unless  the  Supreme  Court  itself  should 
so  direct. 

The  intent  was  evidently  to  provide  a  body  possessing  peculiar  Anticipated 
qualifications  to  deal  with  the  complicated  problems  of  interstate  J?  the^com- 
commerce,  to  insure  uniformity  of  decision,  and  to  obtain  a  final  merce  Court 
decree  concerning  the  orders  of  the  Interstate  Commerce  Com- 
mission more  quickly  than  where  cases  were  prosecuted  in  the 
regular  courts.    Against  the  establishment  of  the  court  it  was 
urged   that  it  was   contrary  to  American   custom   to   establish 
special  courts,  which  might  resemble  the  administrative  courts 
of  Europe.     It  was  feared  by  some  that  the  court  would  fall 
under  the  control  of  the  railroads,  while  some  business  men       , 
feared  radical  action  by  the  court.     Finally,  it  was  asserted  that 
the  creation  of  five  justices  was  but  a  means  of  extending  the* 
patronage  of  the  party  in  power,  and  was  not  warranted  by  the 
necessities  of  the  courts. 

The  history  of  the  court  was  unfortunate.  In  1911  the  court  Abolition  of 
in  a  series  of  decrees  overrode  the  orders  of  the  Interstate  Com-  court 
merce  Commission,  only  to  have  its  own  decision  reversed  by 
the  Supreme  Court.  In  addition,  one  of  the  judges  was  success- 
fully impeached  and  removed.  Moreover,  with  the  change  of 
parties  the  majority  of  the  House  in  1913  attempted  to  abolish 
the  court  by  refusing  an  appropriation  for  its  maintenance. 
Twice  in  1913,  President  Taft  vetoed  general  appropriation  bills 
because  of  such  action.  Finally  by  act  of  Congress,  December,  , 
1913,  the  Commerce  Court  was  abolished  and  the  judges  were 
transferred  to  the  Circuit  Court  of  Appeals.  Thus,  instead  of  a 
review  of  the  decisions  of  the  Interstate  Commerce  Commission 
by  a  single  central  court,  appeals  are  now  brought  in  the  various 
federal  courts  throughout  the  country,  as  was  done  before  the 
Commerce  Court  was  created.  Fear  of  the  establishment  of 
special  courts  has  been  removed,  and  the  jealousy  of  special 
interests  has  been  satisfied,  but  final  uniformity  and  the  ultimate 
decision  of  the  cases  has  been  delayed. 


390    THE  GOVERNMENT  OF  THE  UNITED  STATES 

THE  JURISDICTION  OF  THE  UNITED  STATES  COURTS  l 

The   jurisdiction  of   the    United  States   courts  as  originally 
fixed,  and  later  limited  by  the  Eleventh  Amendment,  extends  to 
all  federalquestions.    The  most  important  section  in  the  grant 
oPpower isTn" Article  VI,  by  which  the  Constitution  and  the 
laws  of  the  United  States  are  declared  to  be  the  supreme  law  of 
the  land.    Given  this  declaration,  the  specific  grants  of  jurisdic- 
tion naturally  follow  and  in  a  certain  sense  are  but  specific  enu- 
merations and  explanations  of  the  general  grant.   Yet  there  are 
The  junsdic-   three  important  additions  which  are  made  by  Article  III,  namely  : 
united  states  in  all  cases  to  which  ambassadors,  states,  and  citizens  of  different 
pSd^y61"   states  are  parties  the  jurisdiction  is  granted  to  the  federal  courts. 
Marshall:       Therefore,  as  Chief  Justice  Marshall  said,  the  jurisdiction  of  the 
courts  may  be  grouped  in  two  classes : 

(i)  character  In  the  first,  their  jurisdiction  depends  on  the  character  of  the  cause, 
whoever  may  be  the  parties.  This  class  comprehends  "  all  cases,  in  law 
and  equity,  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority."  . . . 

(a)  character  In  the  second  class,  the  jurisdiction  depends  entirely  on  the  char- 
acter of  the  parties.  In  this  are  comprehended  "  controversies  between 

1  This  Constitution,  and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof  .  .  .,  shall  be  the  supreme  law  of  the  land.  —  The  Con- 
stitution of  the  United  States,  Article  VI,  clause  2 

The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity,  (i)  arising 
under  this  Constitution,  the  laws  of  the  United  States,  and  treaties  made,  or 
which  shall  be  made,  under  their  authority  ;  (2)  to  all  cases  affecting  ambassadors, 
other  public  ministers,  and  consuls ;  (3)  to  all  cases  of  admiralty  and  maritime 
jurisdiction ;  (4)  to  controversies  to  which  the  United  States  shall  be  a  party ; 
(5)  to  controversies  between  two  or  more  States,  (6)  between  a  State  and  citi- 
zens of  another  State,  (7)  between  citizens  of  different  States,  (8)  between 
citizens  of  the  same  State  claiming  lands  under  grants  of  different  States, 
(9)  and  between  a  State,  or  the  citizens  thereof,  and  foreign  states,  citizens,  or 
subjects.  —  Ibid.  Article  III,  Sect,  ii,  clause  i 

The  judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  by  citizens  or  subjects  of  any  foreign 
state.  —  Ibid.  Amendment  XI 

In  all  cases  affecting  ambassadors,  other  public  ministers,  and  consuls,  and 
those  in  which  a  State  shall  be  party,  the  Supreme  Court  shall  have  original  juris- 
diction. In  all  the  other  cases  before  mentioned,  the  Supreme  Court  shall  have 
appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions  and  under 
such  regulations  as  the  Congress  shall  make.  —  Ibid.  Article  III,  Sect,  ii,  clause  2 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES      391 

two  or  more  States,  between  a  State  and  citizens  of  another  State  "  ; 
and  "  between  a  State  .  .  .  and  foreign  states,  citizens,  or  subjects."  If 
these  be  the  parties,  it  is  unimportant  what  may  be  the  subject  of  the 
controversy.  Be  it  what  it  may,  these  parties  have  a  constitutional 
right  to  come  into  the  courts  of  the  Union.1 

Reading  in  the  exception  of  the  Eleventh  Amendment,  which 
rendered  a  state  free  from  the  possibility  of  suit  by  a  citizen, 
Marshall's  definition  holds  good  to  this  day. 

Those  cases  depending  upon  the  character  of  the  controversy  character 
are  most  easily  understood.  The  Constitution  grants  to  the  maSfme 
courts  jurisdiction  over  cases  in  maritime  affairs  and  all  cases  .affairs  and 

*  all  cases  to 

arising  under  the  Constitution  or  laws  of  the  United  States,  which  the 
This  grant  is  the  logical  enumeration  and  affirmation  of  the  is™  party 
supremacy  of  the  federal  law.  Article  VI  of  the  Constitution 
declares  the  Constitution  and  laws  of  the  United  States  to  be 
the  supreme  law  of  the  land,  and  judges  of  the  state  courts  are 
bound  to  enforce  them  ;  but  recognizing  the  pressure  which 
might  be  brought  to  bear  upon  a  state  judge,  and  also  to  provide 
a  tribunal  undisturbed  by  state  influence,  the  convention  of  1787 
provided  a  national  judiciary  to  enforce  its  own  laws.  The 
enforcement  of  the  laws  of  the  United  States  in  the  courts  of 
the  United  States  is  easily  understood  ;  and  Congress  has  by 
various  statutes  established  inferior  courts  and  determined  which 
court  should  have  jurisdiction  over  various  statutes.  For  example, 
the  enforcement  of  most  of  the  federal  laws  is  given  to  the  Dis- 
trict Court  ;  but  appeals  from  the  appraisers  are  carried  not  to 
the  District  Court  but  to  the  Court  of  Customs  Appeals.  All 
admiralty  jurisdiction  and  all  criminal  prosecutions  provided  for 
by  statute  are  furthermore  vested  in  the  District  Court. 

But  the  supremacy  of  the  federal  system  would  not  be  satisfied  The  united 
by  a  mere  formal  enforcement  of  the  federal  statutes.    The  Con- 
stitution  lays  certain  restrictions  upon  the  states  and  guarantees 


certain  rights  to  individuals.    The  United  States  judiciary  fur-  stitutionai 

rights  are 

nishes  an  instrument  for  enforcing  these  provisions  and  guarding  enforced 
these  rights  against  state  action.    Therefore,  under  certain  restric- 
tions, in  any  case  in  which  a  right  or  privilege  is  guaranteed  by 

V 

1  Cohen  v.  Virginia,  6  Wheat.  264,  378. 


392    THE  GOVERNMENT  OF  THE  UNITED  STATES 

a  federal  law  or  by  the  federal  Constitution  and  is  denied  by  a 
state  court,  or  in  one  in  which  it  is  claimed  that  a  state  law  or 
constitution  infringes  the  federal  Constitution  or  federal  law,  and 
such  state  instrument  is  upheld  by  the  state  court,  the  cause  may 
be  taken  to  the  United  States  courts. 

The  jurisdiction  of  the  United  States  courts,  however,  is 
gained  not  merely  where  a  constitutional  question  is  the  sole 
point  at  issue,  but  if  the  constitutional  question  is  in  any  sense 
a  vital  or  integral  part  of  the  proceedings,  the  decision  of  the 
whole  case  is  transferred  to  the  federal  courts.  Thus  Chief 
Justice  Marshall  stated  the  jurisdiction  of  the  court : 

if  a  constitu-  A  cause  may  depend  upon  several  questions  of  fact  and  law«  Some 
tioTisa.UviStai  °^  t^iese  may  depend  upon  the  construction  of  a  law  of  the  United 
part  of  the  States ;  others  on  principles  unconnected  with  that  law.  If  it  be  a  • 
SnftediStates  sufficient  foundation  for  jurisdiction,  that  the  title  or  right  set  up  by 
courts  may  ^g  party,  may  be  defeated  by  one  construction  of  the  Constitution  or 
diction  law  of  the  United  States,  and  sustained  by  the  opposite  construction, 

provided  the  facts  necessary  to  support  the  action  be  made  out, 
then  all  the  other  questions  must  be  decided  as  incidental  to  this, 
which  gives  that  jurisdiction.  .  .  .  We  think,  then,  that  when  a  ques- 
tion to  which  the  judicial  power  of  the  Union  is  extended  by  the  Con- 
stitution, forms  an  ingredient  of  the  original  cause,  it  is  in  the  power 
of  Congress  to  give  to  the  Circuit  Courts  jurisdiction  of  that  cause, 
although  other  questions  of  fact  or  law  may  be  involved  in  it.1 

Appeals  to  Thus  the  courts  may  gain  jurisdiction  over  any  case  under  a 

statescourts  state  constitution  or  law  in  which  a  constitutional  right  is 
involved ;  and  on  appeal  may  take  the  consideration  of  the 
same,  provided  the  state  court  has  refused  to  enforce  the  claim 
set  up  under  the  federal  law  or  Constitution.  This  vastly 
enlarges  the  jurisdiction  of  the  federal  courts  and  gives  them 
judicial  review  of  the  acts  of  state  legislatures  with  the  power 
of  declaring  unconstitutional  and  void  such  acts  as,  in  their 
opinion,  transgress  the  federal  Constitution.2 

1  Osborn  v.  Bank,  9  Wheat.  738,  821,  822,  823. 

2  A  final  judgment  or  decree  in  any  suit  in  the  highest  court  of  a  state,  in 
which  the  decision  in  the  suit  could  be  had,  where  is  drawn  in  question  the 
validity  of  a  treaty  or  statute  of,  or  authority  exercised  under  the  United  States, 
and  the  decision  is  against  their  validity ;  or  where  is  drawn  into  question  the 
validity  of  a  statute  of,  or  an  authority  exercised  under  any  state,  on  the  ground 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     393 

From  this  point  of  view  the  jurisdiction  of  the  courts  is  far  jurisdiction 
beyond  the  legislative  power  of  Congress.    Congress  can  legislate  wider  than*8 


only  upon  specific  subjects  ;  these  laws  the  courts  enforce.    But 

the  courts   enforce  principles   establishe^___by_thje_Xkmstitution  congress 

upon  which  Congress  has  n^jjQJ.vej'Joj^ 

For  example,  the  Fourteenth  Amendment  declares  : 

No  State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States  ;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law.  .  .  . 

In  declaring  an  act  of  Congress  passed  to  give  the  negroes 
equal  rights  in  inns,  public  places,  and  conveyances,  unconstitu- 
tional, the  court  said  : 

It  [the  Fourteenth  Amendment]  does  not  invest  Congress  with 
power  to  legislate  upon  subjects  which  are  within  the  domain  of  state 
legislation  ;  but  to  provide  modes  of  relief  against  state  legislation,  or 
state  action,  of  the  kind  referred  to. 

The  court  illustrated  its  contention  as  follows  : 

-The  Constitution  prohibited  the  states  from  passing  any  law  impair-  illustrated 
ing  the  obligation  of  contracts.    This  did  not  give  Congress  power  to  Sghts  case! 
provide  laws  for  the  general  enforcement  of  contract  ;   nor  power  to 
invest  the  courts  of  'the  United  States  with  jurisdiction  over  contracts, 
so  as  to  enable  parties  to  sue  upon  them  in  those  courts.    It  did,  how- 
ever, give  power  to  provide  remedies  by  which  the  impairment  of 
contracts  by  state  legislation  might  be  counteracted  and  corrected; 
and  this  power  was  exercised.1 

The  remedy  was  in  giving  the  federal  courts  jurisdiction  in  cases 
of  appeal  from  state  courts,  where  a  state  law  was  claimed  to  be  an 
impairment  of  contract,  and  the  law  had  been  upheld  by  the  courts. 

of  their  being  repugnant  to  the  Constitution,  treaties,  or  laws  of  the  United 
States,  and  the  decision  is  in  favor  of  their  validity  ;  or  where  any  title,  right, 
privilege  or  immunity  is  claimed  under  the  Constitution,  or  any  treaty  or  statute 
of  or  commission  held  or  authority  exercised  under  the  United  States,  and  the 
decision  is  against  the  title,  right,  privilege  or  immunity  especially  set  up  or 
claimed,  by  either  party,  under  the  Constitution,  treaty,  statute,  commission  or 
authority  may  be  examined  and  reversed  or  affirmed  in  the  Supreme  Court  upon 
writ  of  error.  —  Rules  for  Appeals  to  United  States  Courts 
1  Civil  Rights  Cases,  109  U.  S.  3,  n,  12. 


The  courts 
bring  the 
Constitution 
to  every 
citizen 


Character  of 
the  parties 


Suits  between 
citizens  of 
different 
states  ex- 
tend the 
jurisdiction 
of  the  courts 
into  a  field 
where  Con- 
gress cannot 
legislate 


394    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Congress,  by  giving  the  courts  this  jurisdiction,  enables  the 
courts  by  their  decision  of  the  cases  to  dp  what  Congress  could 
not  accomplish  by  legislation.  In  other  words  Congress  cannot 
correct  or  prohibit  by  legislation  certain  acts  within  the  states. 
But  the  courts,  in  applying  the  principles  of  the  Constitution, 
can  annul  the  laws  of  the  state  or  grant  relief  from  the  acts  of 
states  or  individuals,  which  are  contrary  to  the.  principles  of  the 
Constitution  as  interpreted  by  the  courts.  Hence  it  is  seen  that 
the  field  of  judicial  action  is  wider  than  that  of  congressional 
legislation,  and  from  their  power  to  interpret  and  apply  the 
principles  of  the  Constitution,  the  courts,  not  Congress,  maintain 
the  supremacy  of  the  federal  law  and  apply  it  to  every  con- 
troversy. Or,  to  put  it  more  popularly,  the  courts  bring  the 
Constitution  to  every  citizen. 

The  second  class  of  controversies  over  which  the  courts  take 
jurisdiction  depends  upon  the  character  of  the  parties.  Briefly, 
all  cases  affecting  public  ministers,  states,  and  citizens  of  different 
states,  must  or  may  be  carried  to  the  United  States  courts. 
Cases  involving  ambassadors  have  seldom  arisen,  and  since  by 
the  Eleventh  Amendment  no  citizen  can  sue  a  state,  controver- 
sies between  states  or  citizens  of  different  states  are  the  chief 
ones  over  which  the  courts  have  jurisdiction.  By  far  the  larger 
part  of  these  cases  arising  under  this  grant  come  from  the 
diversity  of  citizenship.  All  such  cases,  no  matter  what  the 
character  of  the  controversy,  may  be  prosecuted  in  United 
States  courts.  It  is  thus  again  clear  that  the  United  States 
courts  possess  a  wider  field  in  jurisdiction  than  Congress  does 
in  legislation.  In  cases  of  all  sorts,  involving  almost  every 
relation  of  life,  the  federal  courts  have  jurisdiction  and  are 
called  upon  to  enforce  and  administer  justice  according  to  law. 
The  question  at  once  arises,  What  law  ?  Congress  is  limited  in 
its  power  of  legislation  and  is  debarred  from  passing  statutes 
upon  many  subjects  over  which  the  courts  take  jurisdiction,  and 
in  which  the  federal  courts  must  have  a  law  to  administer.  In 
such  cases  Congress,  by  the  great  Judiciary  Act  of  1789, 
enacted  that  in 'trials  at  common  law  the  federal  courts  should 
apply,  except  as  otherwise  provided,  the  laws  of  the  several 
states  as  rules  of  decision.  By  this  very  statute  the  power  of 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES      395 


Congress  to  determine  the  procedure  and  to  make  exceptions, 
if  need  be,  is  recognized ;  and  both  Congress  and  the  courts 
have  exercised  this  power. 

One  of  the  most  obvious  examples  of  this  action  is  seen  in  illustrated  t>y 
cases  of  admiralty,  that  is,  in  proceeding  against  a  vessel  in  rent,  J££iralty 
Suits  of  this  sort  are  given  by  the  Constitution  to  the  United 
States  courts,  and  Congress  under  its  power  to  make  all  laws 
necessary  and  proper  for  the  execution  of  the  powers  vested  in 
the  government  has  allowed  the  court  to  develop  a  code  of 
admiralty  which  is  universal  in  its  application  within  all  the 
states.  By  judicial  interpretation  and  congressional  enactment 
this  code  has  been  extended  to  all  waters  which  in  any  way 
may  be  used  for  interstate  commerce,  and  thus  applies  to  inland 
as  well  as  tidal  waters.  This,  of  course,  makes  the  application 
of  admiralty  quite  universal  throughout  the  United  States  ;  and 
this  code  is  not  of  the  states  but  of  the  nation.  In  1890, 
summarizing  the  preceding  decisions,  the  court  held  as  follows : 

It  is  unnecessary  to  invoke  the  power  given  to  Congress  to  regulate 
commerce  with  foreign  nations,  and  among  the  several  states,  in  order 
to  find  authority  to  pass  the  law  in  question.  The  act  of  Congress 
which  limits  the  liability  of  shipowners  was  passed  in  amendment  of 
the  maritime  law  of  the  country,  and  the  power  to  make  such  amend- 
ments is  coe.xtensive  with  that  law.  It  is  not  confined  to  the  boundaries 
or  class  of  subjects  which  limit  and  characterize  the  power  to  regulate 
commerce ;  but,  in  maritime  matters,  it  extends  to  all  matters  and 
places  to  which  maritime  law  extends.  ...  As  the  Constitution  extends 
the  judicial  power  of  the  United  States  to  "  all  cases  in  admiralty  and 
maritime  jurisdiction,"  and  as  this  jurisdiction  is  held  to  be  exclusive, 
the  power  of  legislation  on  the  same  subject  must  necessarily  be  in  the 
national  legislature,  and  not  in  the  state  legislatures.1 

But  it  may  be  said  that,  by  the  Constitution,  cases  in  admi-  illustrated 
ralty  are  expressly  given  to  the  United  States  courts.    Can  similar  ' 

action  be  found  in  "  cases  to  which  the  United  States  is  a  party 
.  .  .  and  between  citizens  of  different  States  "  ?  The  establish- 
ment of  the  Court  of  Claims  and  the  passage  of  the  Tucker  Act 
in  1887  are  sufficient  answers  to  the  question  as  regards  contro- 
versies to  which  the  United  States  is  a  party.  And  in  suits  at 

1  In  re  Garnett,  141  U.  S.  I,  12,  14. 


396    THE  GOVERNMENT  OF  THE  UNITED  STATES 

equity  between  citizens  of  different  states  the  courts  do  not  follow 

the  procedure  of  the  states  nor  necessarily  grant  the  same  reliefs. 

illustrated  by  A  national  code  of  equity,  common  to  all  the  federal  courts,  has 

the^equity       ^^  evolved,  quite  independent  from  the  laws  of  the  different 

states.    This  code,  it  is  to  be  noted,  is  not  based  upon  either 

state  or  federal  law,  but  consists  of  rules  devised  by  the  Supreme 

Court  itself.    Hence  the  revision  of  the  code  in  1912  was  not 

by  Congress  but  by  a  committee  of  the  court. 

common-law  Also  in  common-law  suits  it  is  found  that  Congress  and  the 
courts  have  taken  action  independently  of  the  laws  and  decisions 
of  the  states.  The  Judiciary  Law  of  1789  recognized  the  power 
of  making  exceptions  to  the  procedure  of  following  the  decisions 
and  laws  of  the  states,  and  the  courts  have  made  such  exception. 
The  most  striking  example  is  to  be  found  in  the  realm  of 
commercial  law.  In  this  field  the  court  has  said  : 

in  suits  in-          It  never  has  been  supposed  by  us,  that  the  section  [of  the  judiciary 
merciaf  ia°w "    act]  did  aPPty>  or  was  designed  to  apply,- to  questions  of  a  more  gen-, 
states  on?       e^  nature,  not  at  all  dependent  upon  local  statutes  or  local  usages  of 
are  not  bound   a  fixed  and  permanent  operation,  as,  for  example,  to  the  construction 
statutes          of  ordinary  contracts  or  other  written  instruments,  and  especially  to 
questions  of  commercial  law,  where  the  state  tribunals  are  called  upon 
to  perform  the  like  functions  as  ourselves,  that  is,  to  ascertain  upon 
general  reasoning  and  legal  analogies,  what  is  the  true  exposition  of  the 
contract  or  instrument,  or  what  is  the  just  rule  furnished  by  the  prin- 
ciples of  commercial  law'to  govern  the  case.    And  we  have  not  now  the 
slightest  difficulty  in  holding  that  this  section,  upon  its  true  intendment 
and  construction,  is  strictly  limited  to  local  statutes  and  local  usages  of 
the  character  before  stated,  and  does  not  extend  to  contracts  and  other 
instruments  of  a  commercial  nature,  the  true  interpretation  and  effect 
whereof  are  to  be  sought,  not  in  the  decisions  of  the  local  tribunals  but 
in  the  general  principles  and  doctrines  of  commercial  jurisprudence.1 

The  court  therefore  held  that  it  would  not  follow  nor  be  bound 
by  the  decision  of  the  court  of  New  York.  But  the  court  has 
gone  even  further  and  disregarded  the  statute  of  a  state  which 
conflicted,  with  the  rules  of  general  commercial  law.  Part  of  the 
opinion  in  this  case  reads  as  follows  : 

1  Swift  v.  Tyson,  16  Peters,  i,  18,  19. 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES      397 

Whilst  it  will  not  be  denied  that  the  laws  of  the  several  states  are  of  in  such  cases 

binding  authority  upon  their  domestic  tribunals,  ...  it  is  equally  clear  stetelTcourts 

that  those  laws  cannot  affect,  either  by  enlargement  or  diminution,  the  may  render  of 

jurisdiction  of  the  courts  of  the  United  States  as  vested  and  prescribed  Jtatestatutes 


by  the  Constitution  and  laws  of  the  United  States,  nor  destroy  or  con-  whi?h  l 
trol  the  rights  of  parties  litigant,  to  whom  the  right  of  resort  to  these  tion  of  federal 
courts  has  been  secured  by  the  laws  and  constitution.  .  .  .  courts 

The  general  commercial  law  being  circumscribed  within  no  local  lim- 
its, nor  committed  for  its  administration  to  any  peculiar  jurisdiction,  and 
the  constitution  and  laws  of  the  United  States  having  conferred  upon 
the  citizens  of  the  several  states,  and  upon  aliens,  the  power  or  privilege 
of  litigating  and  enforcing  their  rights  acquired  under  and  defined  by 
that  general  commercial  law,  before  the  judicial  tribunals  of  the  United 
States,  it  must  follow  by  regular  consequence,  that  any  state  law  or  reg- 
ulation, the  effect  of  which  would  be  to  impair  the  rights  thus  secured, 
or  to  divest  the  federal  courts  of  cognizance  thereof,  in  their  fullest 
acceptation  under  the  commercial  law,  must  be  nugatory  and  unavailing.1 

To  sum  up  :  in  general,  the  laws  of  the  several  states  are  fol-  cases  in 
lowed  by  the  United  States  courts  in  suits  of  this  sort.    But  in  courts  follow 
all  cases  of  equity,  and  in  some  cases  of  commercial  law,  and  in  rulf.s  of  , 

*       '  •  national 

the  cases  of  relation  of  master  and  servant,  the  competency  of  application 
witnesses,  and  in  several  other  fields,  the  court  follows  not  the 
laws  of  the  state  but  rules  of  a  national  application.  In  these 
fields  the  courts  come  very  near  to  establishing  a  federal  com- 
mon law.  It  is  true  that  the  existence  of  such  a  common  law 
is  generally  denied,  but  its  principles  are  applied,  and  in  one 
case  its  existence  was  admitted  by  implication.  In  the  case  of 
Western  Union  Telegraph  Co.  v.  Call  Publishing  Co.?  it  was  said  : 

There  is  no  body  of  Federal  common  law  separate  and  distinct  from  NO  "federal 
the  common  law  existing  in  the  several  states  in  the  sense  that  there  is 


a  body  of  statute  law  enacted  by  Congress  separate  and  distinct  from  force  through- 
the  body  of  statute  law  enacted  by  the  several  states.    But  it  is  an   united  states 
entirely  different  thing  to  hold  that  there  is  no  common  law  in  force 
generally  throughout  the  United  States,  and  that  the  countless  multitude 
of  interstate  commercial  transactions  are  subject  to  no  other  rules  and 
burdened  by  no  restrictions  other  than  those  expressed  in  the  statutes 
of  Congress. 

1  Watson  v.  Tarpley,  18  How.  517,  520,  521. 

2  181  U.S.  92,  101. 


398    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Practice  in 
the  federal 
courts 


Distinction 
between 
"law"  and 
"equity" 


It  is,  therefore,  perhaps  within  the  bounds  of  possibility  that 
these  principles  may  be  still  further  extended,  and  that  for  cases 
between  citizens  of  different  states  there  may  develop  a  system 
more  uniform  than  that  of  the  laws  of  the  several  states.  As 
these  cases  multiply,  these  principles  of  federal  decisions  may 
come  to  have  the  characteristic  of  a  federal  common  law,  enforced 
by  the  courts  throughout  the  states.1 

THE  OPERATION  OF  THE  FEDERAL  COURTS 

The  practice  and  procedure  in  the  federal  courts  is  analogous 
to,  yet  in  many  respects  different  from,  that  of  the  courts  in  the 
states.  This  procedure  rests  partly  upon  statute  and  partly  upon 
rules  which  the  courts  themselves  have  established.  The  tech- 
nical details  of  such  procedure  are  of  importance  chiefly  to  the 
bar  and  need  not  be  explained,  but  in  general  it  may  be  said 
that  it  is  more  expensive  to  prosecute  suits  in  the  United  States 
courts  than  in  the  courts  of  the  states.  Yet  in  spite  of  this 
expense  the  federal  courts  are  often  invoked  in  suits  over  which 
state  courts  have  concurrent  jurisdiction,  on  account  of  the 
higher  respect  in  which  the  judges  are  held.  This,  of  course, 
varies  in  different  states,  but,  taking  the  United  States  as  a 
whole,  the  federal  judges  rank  above  those  of  the  states  in  ability 
and  learning.  Moreover,  cases  in  which  a  constitutional  question 
is  involved  reach  their  final  decision  more  readily  through  the 
federal  courts  than  if  initiated  in  the  courts  of  the  states. 

The  courts  of  the  United  States  administer  both  law  and 
equity.  By  "  law  "  is  meant  that  system  of  rules  that  has  grown 
out  of  the  old  English  common  or  customary  law,  added  to  or 
modified  by  English  statutes  passed  before  1 776  and  by  American 
statutes.  By  "  equity  "  is  meant  the  system  of  rules  originated  by 
the  King's  Chancellor  and  the  Court  of  Chancery  to  supplement 
the  English  common  law  which  had  very  early  become  too  rigid. 
Equity  concerns  itself  with  rights_and  remedies  not  sufficiently 
taken  care^oTby  the  cojnmoa-4aw.  Equity,  like  the  common 
law,  has  been  much  added  to  and  modified  by  statute.  These 

1  See  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States, 
p.  1039. 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     399 

two  systems  of  law,  both  now  partly  written  and  partly  unwritten, 
[are  usually  administered  by  the  same  court  sitting  as  a  court  of 
law  or  a  court  of  equity,  according  to  the  case  before  it.  In  a 
case  in  equity,  or  a  chancery  suit  as  it  is  usually  called,  all  the 
proceedings,  the  evidence,  and  the  arguments  are  in  writing ; 
there  is  no  jury  and  the  judge  decides  the  case.  In  cases 
appealed  to  the  United  States  Supreme  Court,  oral  arguments, 
in  addition  to  the  written  arguments,  may  be  presented.1  Suits 
at  law  terminate  in  judgments.  Suits  in  equity  regultjn^  decrees 
which  may  be  positive  commands  to  do  or  refrain  from  doing 
something.  For  example,  a  suit  at  law  may  award  money  damages 
for  the  failure  to  perform  a  contract.  These  damages  may  or 
may  not  be  collected  according  to  the  financial  responsibility  of 
the  defendant.  A  suit  in  equity,  however,  may  result  in  a  decree 
of  the  court  to  perform  the  contract  under  the  penalty  of  imprison- 
ment for  failure  to  obey  the  decree  of  the  court,  an  offense  known 
as  contempt  of  court. 

When  sitting  as  a  court  of  law  of  first  instance  the  courts  try  procedure  m 
cases  before  a  jury,  taking  testimony  of  witnesses  and  listening  to  cour^wien 
the  arguments  of  counsel.   The  judge  then  explains  -the  law —  «courtof  * 
federal,  state,  or  common  —  to  the  jury,  adding  any  special  in-  law 
structions  requested  by  the  counsel  and  approved  by  the  judge. 
The  jury,  after  deliberation,  brings  in  the  verdict,  which  in  most 
states,  and  in  all  United  States  courts,  must  be  the  unanimous 
decision  of  the  twelve  jurymen.   This  verdict,  however,  the  judge 
may  set  aside  as  contrary  to  the  law  or-the-evrdeftce^  But  if  this 
is  done,  the  judge  must  order  a  new  trial.    Federal  judges,  more 
frequently  than  judges  of  state  courts,  take  cases  from  the  hands 
of  the   jury  and   decide   them   from  the   bench.     The   judge, 
moreover,  may  hear  motions,  grant  requests,  and  issue  writs. 

The  writ  of  habeas  corpus  is  the  most  important  of  these.  By  The  writ  of 
this  writ  the  prisoner  is  brought  before  the  court  for  the  purpose 
of  determining  the  cause  of  his  imprisonment.  The  guilt  or 
innocence  is  not  determined,  but  the  reason  and  legality  for  the 
prisoner's  arrest  and  detention  must  be  proved  ^  or  he  may  be 
released.  The  federal  courts  can  only  use  this  writ  in  federal 

1  See  "  Law,   Common "  and  "  Equity,"  in   the   Cyclopedia   of   American 
Government. 


400    THE  GOVERNMENT  OF  THE  UNITED  STATES 

cases.  The  writ  cannot  be  sought  from  a  federal  judge  for  the 
purpose  of  questioning  the  action  of  state  authorities  acting  in 
a  case  involving  merely  state  law.  It  must  be  clear  that  the 
federal  constitution  or  federal  law  is  concerned.  But  it  is  to  be 
'noted  that  the  iedml  anlliUliiy  11  lay  rJe" invoked  in  four  instances.1 
In  such  cases  the  judges  to  whom  Congress  has  given  the  power 
to  issue  the  writ  may  compel  the  authorities,  state  or  federal,  to 
bring  the  prisoner  before  them  to  have  the  cause  for  detention 
passed  upon. 

Another  writ  which  the  United  States  courts  may  issue  is  the 
writ  of  mandamus.  This,  like  the  writ  of  habeas  corpus,  is  a 
common-law  writ  and  is  issued  to  compel  some  corporation, 
official,  or  lower  court  to  do  something.  The  use  of  this  writ 
is  determined  by  statute,  and  it  must  be  made  clear  that  there 
exists  a  legal  right  to  have  the  things  done,  that  a  demand 
has  been  made  and  performance  refused,  and  that  there  is  no 
other  adequate  remedy.  In  the  use  of  this  writ  against  officials 
Marshall,  in  Marbury  v.  Madison,  determined  for  all  time  the 
distinction  between  executive  and  ministerial  acts ;  the  former, 
requiring  discretion,  are  not  subject  to  such  action,  while  the 
latter,  requiring  no  discretion  but  being  performed  merely  ii 
accordance  with  the  directions  of  statutes,  are  clearly  subj< 
to  this  writ. 

When  sitting  as  a  court  of  equity  the  United  States  courl 
apply  a  code  established  by  the  court  and  have  the   power 
issue  certain  writs  especially  provided  for  and  others  "  which  ma} 
be  necessary  to  the  exercise  of  their  respective  jurisdiction  an< 
agreeable  to  the  usages  and  principles  of  law."   The  most  impor- 
tant writ  in  equity  procedure  is  that  of  injunction.    This,  it  is  to 
be  noted,  is  a  writ  issued  in  equity,  and  disobedience  constitutes 
contempt  of  court,   punishable   at  the  discretion  of  the  court. 
This  writ  is  issued  for  many  purposes.     It  may  direct  that 
certain  condition  be  maintained  by  performing  certain  acts.    For 
example,  it  may  order  a  person  to  refrain  from  doing  something 

1  In  the  case  of,  (i)  a  prisoner  detained  under  federal  authority;  (2)  a  pris- 
oner detained  for  some  act  done  or  omitted  in  pursuance  of  federal  authority ; 

(3)  a  prisoner  held  in  violation  of  the  Constitution  or  laws  of  the  United  States ; 

(4)  a  citizen  of  a  foreign  country  claiming  to  be  imprisoned  for  some  action 
done  in  accord  with  the  sanction  of  his  government. 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     401 

either  temporarily  or  permanently.1  A  railroad  may  be  enjoined 
from  laying  its  tracks  until  the  rights  of  its  franchise  be  deter- 
mined, and  if  it  be  found  that  no  such  rights  exist,  the  injunc- 
tion may  be  made  permanent.  Because  the  fact  that  great 
corporations  like  railroads  operate  in  many  states,  the  federal 
courts  obtain  jurisdiction  over  them  on  the  ground  of  diverse 
citizenship,  and  the  railroads  have  frequently  invoked  the  writ 
of  injunction  in  dealing  with  their  employees  in  labor  troubles. 

The  federal  courts,  however,  have  appellate  as  well  as  original  Appeals 
jurisdiction.  From  the  lower  United  States  courts  cases  may  be 
transferred  to  the  higher,  according  to  the  rules  passed  by  Con- 
gress. Thus  cases  from  the  District  Courts  may  be  carried  to 
the  Circuit  Court  of  Appeals  or,  under  certain  conditions,  directly 
to  the  Supreme  Court.  In  like  manner  cases  may  be  taken  from 
the  Circuit  Court  to  the  Supreme  Court.  In  general,  the  process 
is  by  writ  of  error ;  that  is,  it  is  asserted  that  the  lower  court  has 
made  an  error  in  law  in  determining  the  case.  In  certain  other 
cases  the  Supreme  Court  may,  by  a  writ  known  as  certiorari, 
transfer  the  consideration  of  the  case  from  a  lower  court  to 
itself  for  review  and  determination.  Once  within  the  jurisdiction 
of  the  Supreme  Court  it  may  reverse,  modify,  or  affirm  the 
judgment  of  the  lower  court  and  may  at  its  discretion  award 
execution  or  remand  the  same  back  to  the  lower  court  for  award 
in  accordance  with  instructions. 

These  instructions  and  the  decision  of  the  Supreme  Court  procedure  in 
are  given  after  the  case  has  been  presented  by  printed  briefs  courtUprei 
which  contain  the  arguments  of   the  counsel,  by  the  printed 
record  of  the  case  in  the  lower  courts,  and  by  oral  arguments. 
The  printed  portions  of  the  testimony  and  the  brief  are  often  Briefs 
very  voluminous ;  in  one  instance  occupying  over  twenty-three 
volumes  of  twelve  thousand  closely  printed  pages.    During  the 
oral  argument  of  the  counsel  the  justices  frequently  ask  questions  Argument 
or  make  comments.    After  each  case  has  been  publicly  presented 
each  of  the  justices  masters  the  printed  record  and  arguments, 

1  See  Gompers  v.  Bucks  Stove  and  Range  Co.,  215  U.  S.  418,  for  the  use  of  an  in- 
junction against  a  boycott.  This  opinion  contains  an  interesting  discussion  of 
contempt  procedure.  See  also  Hitchman  Coal  and  Coke  Co.  v.  Mitchell,  245  U.  S. 
229,  for  a  discussion  of  the  use  of  injunction  against  unionizing  a  mine. 


Discussion 


Dissecting 
opinions 


402    THE  GOVERNMENT  OF  THE  UNITED  STATES 

and  the  court  then  meets  in  private  and  discusses  the  case,  each 
justice,  beginning  with  the  senior,  giving  his  opinion  in  turn.  If 
agreement  is  reached,  the  Chief  Justice  appoints  one  of  the  jus- 
tices to  write  the  decision  of  the  court ;  but  if  it  is  impossible  to 
reach  unanimity,  one  or  more  justices  may  express  their  dissent 
in  one  or  in  several  dissenting  opinions.  In  one  of  the  Insular 
Cases,  Downes  v.  Bidwell,1  the  judgment  of  the  court  was  ex- 
pressed in  three  separate  opinions  :  one  by  Justice  Brown ;  one 
by  Justice  White,  with  whom  Justices  Shiras  and  McKenna 
concurred,  agreeing  in  the  conclusion  of  Justice  Brown  but  on 
different  grounds ;  and  an  opinion  of  Justice  Gray,  stating  cer- 
tain additional  propositions.  The  minority  of  the  court,  which 
included  the  Chief  Justice  and  Justices  Harlan,  Brewer,  and 
Peckham,  dissented,  Justice  Harlan  filing  an  additional  opinion. 
From  the  above  it  will  be  seen  that  there  was  no  majority  which 
followed  the  same  process  of  reasoning,  but  that  a  majority  of 
one  reached  the  same  conclusion  by  different  methods  of  thought 
and  application. 

Distinction  It  is  therefore  very  necessary  to  bear  in  mind  the  difference 
judgment  and  between  the  judgment  of  the  court  and  the  opinion  in  which 
tEecourt0nof  that  judgment  is  expressed.  The  judgment  of  the  court  in  a 
case  is  always  the  judgment  of  the  majority,  and  is  usually 
expressed  in  a  brief  sentence,  affirming,  reversing  the  judgment 
of  the  lower  court,  or  remanding  the  case  for  retrial  in  accord- 
ance with  instructions,  or  granting  or  denying  the  petition  for 
relief  asked.  This  judgment  is  the  sole  legal  decision  of  the 
court  in  any  particular  case ;  but  the  court  generally  discusses 
the  case,  showing  the  method  of  thought  pursued  in  reaching 
the  conclusion  stated  in  the  judgment.  This  is  the  opinion.  It 
is  not  a  part  of  the  legal  judgment,  but  it  indicates  the  attitude 
of  the  court  not  merely  upon  the  case  under  consideration  but 
sets  forth  the  principles  controlling  the  case  in  hand,  and  in 
other  similar  cases.  That  part  of  the  opinion  which  deals  with 
the  decision  of  the  case  under  review  is  accepted  as  the  position 
of  the  court  and  is  regarded  as  a  declaration  of  the  court  as  to 
what  will  be  held  to  be  the  law  in  subsequent  similar  cases. 
Frequently,  however,  opinions  of  the  court  go  outside  of  the 

1 182  u.  s.  244. 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     403 

case  under  consideration  and  lay  down  principles  —  obiter  dicta  obiter  dicta 
—  which  have  little  application  to  the  actual  decision  of  the  par- 
ticular case  but  are  indicative  of  the  point  of  view  of  the  court. 
Thus  Marshall,  in  Marbury  v.  Madison,  expressed  the  judgment 
of  the  court  in  these  words,  "The  rule  must  be  discharged." 
The  reasoning  upon  which  the  judgment  was  based  set  forth 
the  power  of  the  Supreme  Court  to  declare  an  act  of  Congress 
unconstitutional,  while  as  a  series  of  obiter  dicta  the  court  made 
the  distinction  between  executive  and  ministerial  acts  of  officials, 
a  distinction  which  has  ever  since  been  followed.  The  most 
notorious  case  was  found  in  the  Dred  Scott  case,  where  the 
judgment  of  the  court  was  that  the  decision  of  the  lower  court 
be  reversed  and  the  case  dismissed  for  want  of  jurisdiction ;  but 
in  his  opinion  Chief  Justice  Taney  attempted  to  settle  the  ques- 
tion of  slavery  in  the  territories  by  a  series  of  obiter  dicta  which 
did  much  to  hasten  the  Civil  War. 

Although  the  majority  opinion  is  always  effective,  yet  the  dis-  Dissenting 
senting  opinions  frequently  find  such  strong  supporters  that  the 
action  of  the  court  is  brought  into  politics.  Particularly  is  this 
true  when  one  political  party  passes  acts  to  alter  the  existing  judgment 
social  or  economic  system,  and  these  statutes  are  held  unconsti- 
tutional by  a  bare  majority  of  the  court.  Thus,  in  the  Income 
Tax  case l  the  case  was  at  first  heard  and  decided  by  a  divided 
court  in  which  the  full  number  of  justices  was  not  present.  At 
the  rehearing  one  of  the  justices  altered  his  views,  and  the  law 
was  held  unconstitutional  by  a  vote  of  five  to  four.  This  gave 
great  offense  to  many  of  the  Democratic  party,  which  was  voiced 
by  Mr.  Bryan  when  he  said  :  "  The  income  tax  was  not  unconsti- 
tutional when  it  was  passed.  It  was  not  unconstitutional  when 
it  went  before  the  Supreme  Court  for  the  first  time.  It  did  not 
become  unconstitutional  until  one  judge  changed  his  mind." 

Not  only  may  the  decision  of  the  court  be  brought  into  politics  criticism  of 

,       .  .  opinions  and 

and  its  motives  criticized,  but  a  genuine  doubt  may  arise  as  to  judgments 
what  the  law  actually  is.    The  decision  of  a  particular  case  is  evi-  of  court 
dent,  but  so  different  and  contradictory  views  may  be  held  by 
the  majority  that  the  underlying  principles  applicable  to  similar 
cases  may  be  by  no  means  clear.    Where  the  court  is  divided 

1  Pollock  v.  Farmers'  Loan  and  Trust  Co.,  157  U.  S.  429 ;   158  U.  S.  601. 


404    THE  GOVERNMENT  OF  THE  UNITED  STATES 

the  law  is  uncertain,  and  confusion  results.  Again,  if  four  jus- 
tices agree  in  their  interpretation  and  reasoning  that  the  majority 
of  the  court  is  wrong,  many  excuses  may  be  found  for  lay  criti- 
cism. "  If  you  want  criticism,"  said  Mr.  Bryan,  "  read  the  dis- 
senting opinions  of  the  court."  The  influence  of  the  court  is 
not  strengthened  if  critics  can  find  in  the  dissenting  opinions 
arguments  better  than  they  can  frame,  directly  contrary  to  what 
is  declared  to  be  the  law,  and  which  furnish  arguments  for  the 
support  of  what  the  court  has  declared  the  law  is  not.  Law 
which  depends  for  its  validity  upon  the  opinion  of  one  justice 
may  seem  less  sacred  than  the  desires  of  thousands  expressed 
by  their  representatives  in  the  legislature.  Fortunately,  however, 
in  recent  years  four  to  five  decisions  have  been  less  frequent, 
and  there  seems  to  be  an  attempt  to  reach  a  common  ground  of 
decision.  This  increasing  unanimity  has  not  only  strengthened 
the  influence  of  the  court  but  has  greatly  increased  the  respect 
for  law. 


CHAPTER  XVI 

THE  JUDICIAL  SYSTEM  OF  THE  UNITED  STATES 
(CONTINUED) 

THE  SUPREME  COURT  AND  LEGISLATION 
"...  There  is  no  court  that  has  power  to  defeat  the  intent  Parliament 


of  the  legislature,  when  couched   in  such  evident  and  express  1 


words  as  to  leave  no  doubt  whether  it  was  the  intent  of  the  legis-  hence 

°  are  constitu- 

lature  or  no."  l    Nevertheless,  the  Supreme  Court  has  declared  tionai.  con- 

nearly  three  hundred  statutes  unconstitutional.   In  thus  negativing  sovereign  in 


the  will  of  the  representatives  the  court  has  been  accused  of 
judicial  usurpation.  But  the  British  constitution  differs  from  the 
Constitution  of  the  United  States.  The  British  constitution  is  of  judicial 

n-ii  11  •  •      •     -r.     T  •  •  review 

a  flexible  type,  largely  unwritten  ;  in  it  Parliament  is  sovereign, 
and  every  act  of  Parliament  is  ipso  facto  legal  and  constitutional. 
On  the  other  hand,  the  Constitution  of  the  United  States  is  rigid, 
written  in  form,  and  Congress  not  being  sovereign  can  legislate 
only  upon  those  subjects  delegated  to  it  by  the  Constitution. 
The  Constitution  is  at  once  a  delegation  of  authority  and  a  limit 
to  the  use  of  that  authority. 

As  has  been   shown,   the   colonists  and  the  people  of  the  Result  of 
states   were  accustomed  to  this   idea   of  written  constitutions.  Sgn^and 
Moreover,    both   colonial   and    state    legislatures  had   seen   the  ac<iuiescence 
courts   negative   their  acts  and  enforce   the   principles  of   the 
charters  or  state  constitutions  in  opposition  to  their  own  statutes. 
Therefore,  considering  the  declared  supremacy  of  the  Constitu- 
tion and  federal  law,  it  might  be  argued  a  priori  that  the  f  ramers 
of  the  Constitution  of   1789  intended  to  give  the  courts  the 
power  of  judicial  review  to  which  the  people  were  more  or  less 
accustomed.    Whether  such  was  their  intent  or  not,  two  things 
have  happened  :  First,  the  courts  with  unanswerable  logic  have 

1  Blackstone,  Commentaries,  Vol.  I,  p.  91. 

405 


4o6    THE  GOVERNMENT  OF  THE  UNITED  STATES 

demonstrated  their  power  to  declare  acts  of  the  state  and  national 
legislature  unconstitutional  when  they  conflicted  with  the  federal 
constitution.  Second,  this  power,  while  at  first  bitterly  attacked, 
was  in  time  acquiesced  in,  except  on  certain  critical  occasions, 
but  recently  it  has  been  made  the  basis  of  most  revolutionary 
proposals  for  amending  the  Constitution  and  has  been  once 
again  denominated  judicial  usurpation. 

judicial  re-         Professor  Beard 1  has  shown  that  some  of  the  more  prominent 

objected^  in  members  of  the  convention  of  1787  held  on  various  occasions 

convention      that  this  power  of  judicial  review  might  be  exercised,  and  the 

judicial  article  of  the  Constitution  was  adopted  without  serious 

objection,  although  it  was  known  to  be  susceptible  of  such  an 

interpretation.    Professor  McLaughlin,2  discussing  the  political 

theory  and  practice  from  the  time  of  the  Revolution,  says : 

The  chiefest  among  the  principles  I  have  given  are  these :  first  and 
foremost,  the  separation  of  the  powers  of  government  and  the  independ- 
ence of  the  judiciary,  which  led  courts  to  believe  that  they  were  not 
bound  in  their  interpretation  of  the  Constitution  by  the  decisions  of  a 
collateral  branch  of  the  government ;  second,  the  prevalent  and  deeply 
cherished  conviction  that  governments  must  be  checked  and  limited  in 
order  that  individual  liberty  might  be  protected  and  property  preserved ; 
third,  that  there  was  a  fundamental  law  in  all  free  states  and  that 
freedom  and  God-given  right  depended  on  the  maintenance  and  pres- 
ervation of  that  law  .  .  .  ;  fourth,  the  firm  belief  in  the  existence  of 
natural  rights  superior  to  all  governmental  authority,  and  in  the  prin- 
ciples of  natural  justice  constituting  legal  limitations  upon  governmental 
activity.  .  .  .  Back  of  all  these  ideas  was  a  long  course  of  English 
development  in^  which  the  judges  had  played  a  significant  part  in 
constitutional  controversy. 

From  judicial  precedent,  moreover,  it  is  easily  demonstrated 
that  the  Supreme  Court  exercised  this  power  almost  from  its 
organization.  The  first  indication  of  the  attitude  of  the  court  is 
found  in  1790  in  Hayburris  Case?  This  arose  from  the  fact 
that  Congress  had  provided  that  the  federal  judges  should  act 
as  examining  magistrates  in  regard  to  military  pensions,  and  that 

1  C.  A.  Beard,  The  Supreme  Court  and  the  Constitution,  chap.  ii. 

2  A.  C.  McLaughlin,  The  Courts,  the  Constitution,  and  the  Parties,  pp.  105, 
106.  s  2  Dali 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     407 

their  decisions  should  be  subject  to  review  by  the  Secretary  of 
War.    The  constitutionality  of  the   statute  was  never  formally 
passed  upon,  but  all  of  the  justices  of  the  Supreme  Court  when 
on  circuit  expressed  their  opinions,  and  Congress  repealed  the 
act.    The  earliest  case  in  which  a  statute  of  Congress  was  con- 
sidered  by   the   court  was   in    I7Q6.1    In   this   case  the   court 
upheld  the  statute  laying  a  direct  tax  upon  carriages.    Although 
the  statute  was  upheld,  yet  the  reason  for  bringing  the  suit  was 
the  assumption  that  the  court  had  the  power  to  pass  upon  the 
constitutionality  of  an  act  of  Congress.    In   1803,  in  Marbury  Marshall's 
v.  Madison,  Marshall  stated  the  theory  so  clearly  and  logically  JfmSwiMr. 
that,  as  far  as  the  court  has  been  concerned,  it  has  never  since  Madison 
been  questioned.    His  reasoning  on  this  point  was  as  follows  : 

The  authority,  therefore,  given  to  the  Supreme  Court,  by  the  act  Act  of  con- 

establishing  the  judicial  courts  of  the  United  States,  to  issue  writs  of  Warranted 

mandamus  to  public  officers,  appears  not  to  be  warranted  by  the  Con-  by  the 
stitution  ;  and  it  becomes  necessary  to  inquire  whether  a  jurisdiction 
so  conferred  can  be  exercised. 

The  question,  whether  an  act  repugnant  to  the  Constitution  can  can  an  act  of 

become  the  law  of  the  land,  is  a  question  deeply  interesting  to  the  J^plfgnant  to 

United  States  ;  but,  happily,  not  of  an  intricacy  proportioned  to  its  the  consti- 

interest.    It    seems    only   necessary    to    recognize   certain    principles,  Jaw?nb 
supposed  to  have  been  long  and  well  established,  to  decide  it.  ... 

.  .  .  The  powers  of  the  legislature  are  defined,  and  limited  ;  and  that  Powers  of 
those  limits  may  not  be  mistaken,  or  forgotten,  the  Constitution  is 


written.  To  what  purpose  are  powers  limited,  and  to  what  purpose  is  the  consti- 
that  limitation  committed  to  writing,  if  these  limits  may,  at  any  time, 
be  passed  by  those  intended  to  be  restrained  ?  The  distinction  between 
a  government  with  limited  and  unlimited  powers,  is  abolished,  if  those 
limits  do  not  confine  the  persons  on  whom  they  are  imposed,  and  if 
acts  prohibited  and  acts  allowed,  are  of  equal  obligation.  It  is  a  propo- 
sition too  plain  to  be  contested,  that  the  Constitution  controls  any 
legislative  act  repugnant  to  it;  or  that  the  legislature  may  alter  the 
Constitution  by  an  ordinary  act. 

Between  these  alternatives  there  is  no  middle  ground.    The  Constitu-  constitution 

i  1  1     i_         j  •  is  tnus 

tion  is  either  a  superior,  paramount  law,  unchangeable  by  ordinary  supreme  or 

means,  or  it  is  on  a  level  with  ordinary  legislative  acts,  and  like  other  JJ 
acts,  is  alterable  when  the  legislature  shall  please  to  alter  it.  ...  Congress 

1  Hylton  v.  United  States,  3  DaU,  171. 


408    THE  GOVERNMENT  OF  THE  UNITED  STATES 

court  must          It  is  emphatically  the  province  and  duty  of  the  judicial  department 

of  two  con-*  to  sav  w^at  t^ie  ^aw  *s'  T^ose  w^°  aPPty  *-he  ru^e  to  Particular  cases, 
flicting  laws  must  of  necessity  expound  and  interpret  that  rule.  If  two  laws  conflict 

e  with  each  other,  the  courts  must  decide  on  the  operation  of  each, 
court  must          So  if  a  law  be  in  opposition  to  the  Constitution  ;  if  both  the  law  and 
conformably     tne  Constitution  apply  to  a  particular  case,  so  that  the  court  must 
to  the  con-      either  decide  that  case  conformably  to  the  law  disregarding  the  Con- 
stitution ;  or  conformably  to  the  Constitution,  disregarding  the  law ; 

the  court  must  determine  which  of  these  conflicting  rules  governs  the 

case.    This  is  of  the  very  essence  of  judicial  duty. 

Constitution,  If  then  the  courts  are  to  regard  the  Constitution  ;  and  the  Constitu- 
ent ?*  tion  is  superior  to  any  ordinary  act  of  the  legislature ;  the  Constitution, 
governs  case  and  not  such  ordinary  act  must  govern  the  case  to  which  they 

both   apply. 

Those  then  who  controvert  the  principle  that  the  Constitution  is  to 

be  considered,  in  court,  as  a  paramount   law,  are  reduced   to  the 

necessity  of  maintaining  that  the  courts  must  close  their  eyes  on  the 

Constitution  and  see  only  the  law. 
TO  overlook          This  doctrine  would  subvert  the  very  foundation  of  all  written  consti- 

tutions.   It  would  declare  that  an  act,  which,  according  to  the  principles 

anc*  ^^  °^  our  government,  is  entirely  void ;  is  yet,  in  practice,  corn- 
supremacy  of  pletely  obligatory.  It  would  declare,  that  if  the  legislature  shall  do  what 
tfon  andSmake  is  exPressty  forbidden,  such  act,  notwithstanding  the  express  prohibi- 
congress  tion,  is  really  effectual.  It  would  be  giving  to  the  legislature  a  practical 

and  real  omnipotence,  with  the  same  breath  which  professes  to  restrict 

their  powers  within  narrow  limits.    It  is  prescribing  limits,  and  declaring 

that  those  limits  may  be  passed  at  pleasure.  .  .  . 

The  judicial  power  of  the  United  States  is  extended  to  all  cases 

arising  under  the  Constitution. 

Could  it  be  the  intention  of  those  who  gave  this  power,  to  say  that, 

in  using  it,  the  Constitution  should  not  be  looked  into  ?    That  a  case 

arising  under  the  Constitution  should  be  decided  without  examining  the 

instrument  under  which  it  arises  ? 

This  is  too  extravagant  to  be  maintained.  .  .  . 

The  Constitution  declares  "  that  no  bill  of  attainder  or  ex  post  facto 

law  shall  be  passed." 

If,  however,  such  a  bill  should  be  passed  and  a  person  should  be 

prosecuted  under  it,  must  the  court  condemn  to  death  those  victims 

whom  the  Constitution  endeavors  to  preserve? 

Fr°m  theSC'  and  many  °ther  selections  which  miSht  be  made»  * 
is  apparent  that  the  framers  of  the  Constitution  contemplated  that 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     409 

instrument  as  a  rule  for  the  government  of  the  courts,  as  well  as  of 
the  legislature.  .  .  . 

It  is  also  not  entirely  unworthy  of  observation,  that  in  declaring  what  The  Constitu- 
shall  be  the  supreme  law  of  the  land,  the  Constitution  itself  is  first  men-  piemeYa^of 
tioned ;  and  not  the  laws  of  the  United  States  generally,  but  those  only  the  land 
which  shall  be  made  in  pursuance  of  the  Constitution,  have  that  rank. 

Thus,  the  particular  phraseology  of  the  Constitution  of  the  United 
States  confirms  and  strengthens  the  principle,  supposed  to  be  essential 
to  all  written  constitutions,  that  a  law  repugnant  to  the  Constitution  is 
void ;  and  that  the  courts,  as  well  as  other  departments,  are  bound  by 
that  instrument.1 

The  power  to  declare  the  act  of  a  state  unconstitutional  was  first 
exercised  in  1795,  in  Vanhornes  Lessee  v.  Dorrance?  where  the 
court  used  words  which  might  have  been  the  precedents  for 
Marshall's  more  elaborate  reasoning : 

What  is  a  Constitution  ?    It  is  the  form  of  government,  delineated  by  justice 
the  mighty  hand  of  the  people,  in  which  certain  first  principles  of  funda-  fheYup^em- 
mental  laws  are  established.    The  Constitution  is  certain  and  fixed ;  it  acy  of  the 
contains  the  permanent  will  of  the  people,  and  is  the  supreme  law  of  the 
land ;  .  .  .  and  can  be  revoked  or  altered  only  by  the  authority  that 
made  it.  ...   What  are  the  Legislatures  ?  Creatures  of  the  Constitution  ; 
they  owe  their  existence  to  the  Constitution :  they  derive  their  powers 
from  the  Constitution :  It  is  their  commission ;  and,  therefore  all  their 
acts  must  be  conformable  to  it,  or  else  they  will  be  void.   The  Consti- 
tution is  the  work  or  will  of  the  People  themselves,  in  their  original, 
sovereign,  and  unlimited  capacity.    Law  is  the  work  or  will  of  the  Legis- 
lature in  their  derivative  and  subordinate  capacity.   The  one  is  the  work 
of  the  Creator,  and  the  other  of  the  Creature. 

But  this  act  conflicted  with  a  treaty  not  with  a  constitutional  rule. 
The  earliest  cases  in  which  a  state  statute  was  declared  uncon- 
stitutional were  those  of  United  States  v.  Peters*  in  1 809,  and 
Fletchers.  Peckf  in  1810.  In  both  these  cases  Marshall  upheld 
the  supremacy  of  the  Constitution,  although  pointing  out  the  deli- 
cate position  of  the  court  in  annulling  the  act  of  a  state.  Nation- 
alist that  he  was,  Marshall  apparently  had  more  respect  for  the 
act  of  a  state  than  for  the  coordinate  branch  of  the  government. 

1  i  Cranch,  137,  176,  177,  178,  179,  180.  8  5  Cranch,  115. 

2  2  Ball.  304,  308.  4  6  Cranch,  87. 


4IO    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Analysis  of  Up  to  19 1 1  the  Supreme  Court,  acting  upon  this  power,  con-  | 
sidered  1183  cases  in  which  the  constitutionality  of  a  federal  or 
state  statute  was  questioned.1  Of  these,  904  have  been  upheld 
and  279  have  been  declared  unconstitutional.  In  218  cases  fed- 
eral acts  have  been  under  consideration  and  in  185  cases  the 
statute  has  been  upheld,  while  in  only  33  cases  have  the  laws 
been  declared  unconstitutional,  or  in  nearly  85  per  cent  of 
the  cases  the  statute  has  been  affirmed.  Of  the  965  cases  in 
which  state  statutes  or  municipal  ordinances  were  brought  before 
the  court,  719  were  upheld  and  246  declared  void,  or  in  all 
more  than  74  per  cent  of  the  cases  the  act  of  the  states  have 
been  upheld.2 

In  view  of  these  numerous  precedents  and  comparatively  small 
percentage  of  statutes  disallowed,  it  is  somewhat  surprising  to 
find  a  recrudescence  of  the  criticism  that  the  courts  are  thwarting 
the  will  of  the  people  and  are  usurping  the  functions  of  the 
legislatures.  Several  reasons  typical  of  modern  tendencies  may 
be  found  to  explain  this  attitude. 

KINDS  OF  STATUTES  ANNULLED 

In  some  of  the  decisions  the  court  has  attempted  to  set  aside 
statutes  passed  by  Congress  in  the  attempt  to  remedy  industrial 
Employers'  and  social  conditions.  In  1906  Congress  attempted  to  give  to 
employees  in  interstate  commerce  surer  remedies  for  the  injuries 
they  might  suffer.  In  so  doing  the  act  repealed  the  old  common- 
law  rules  of  fellow  servant,  that  is,  that  an  employer  was  not 
liable  for  an  injury  to  an  employee  caused  by  the  negligence  of 
a  fellow  employee,  and  also  the  rule  of  contributory  negligence, 
which  prevented  an  employee  from  recovering  damages  for  an 
injury  caused  in  part  by  his  own  carelessness.3  Five  of  the 
justices  held  that  this  act  was  unconstitutional  on  the  ground 
that  it  extended  to  more  than  interstate  commerce ;  and  three 
of  the  five  held  that  Congress  had  no  power  to  regulate  the 
relations  between  an  employer  and  his  employees.  This  decision 

1  See  an  exhaustive  monograph  by  B.  F.  Moore,  The  Supreme  Court  and 
Unconstitutional  Legislation,  1913. 

2  Ibid.  pp.  139-141. 

3  Employers'  Liability  Cases,  207  U.  S.  463. 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     411 

prevented  temporarily,  at  least,  an  attempt  to  ameliorate  the  hard- 
ships of  an  old  common-law  doctrine  which  seemed  to  Congress 
unsuitable  to  modern  conditions.  It  is  true  that  Congress  re- 
passed  the  statute  making  it  applicable  only  to  those  engaged 
in  interstate  commerce,  and  in  such  form  it  was  upheld  by  the 
court.1  But  popular  criticism  did  not  forget  the  reasoning  and 
attitude  displayed  by  the  court  in  the  first  case. 

In  1898  Congress  passed  an  act  dealing  with  the  labor  diffi-  Labor  unions 
culties  on  interstate  railroads  and  carriers,  providing  for  arbitra- 
tion and  making  it  an  offense  to  prevent  the  employees  from 
joining  or  remaining  in  labor  unions.  This  was  held  unconsti- 
tutional because  there  was  no  such  connection  between  interstate 
commerce  and  membership  in  a  labor  organization  as  to  authorize 
Congress  to  make  it  a  crime  against  the  United  States  for  an 
agent  of  an  interstate  carrier  to  discharge  an  employee  because 
.of  such  membership  on  his  part.  And,  furthermore,  the  act  was 
held  unconstitutional  because  it  contravened  the  Fifth  Amend- 
ment, which  provides  that  no  person  shall  be  deprived  of  his  life, 
liberty,  or  property  without  due  process  of  law.  Justice  Harlan 
amplified  this  point  in  these  words  : 

The  right  of  a  person  to  sell  his  labor  upon  such  terms  as  he  deems  opinion  of 
proper  is,  in  its  essence,  the  same  as  the  right  of  the  purchaser  of  labor  ^J^J 
to  prescribe  the  conditions  upon  which  he  will  accept  such  labor  from 
the  person  offering  to  sell  it.    So  the  right  of  the  employee  to  quit  the 
service  of  the  employer,  for  whatever  reason,  is  the  same  as  the  right 
of  the  employer,  for  whatever  reason,  to  dispense  with  the  services  of 
such  employee.  ...  In  all  such  particulars  the  employer  and  the  em- 
ployee have  equality  of  right,  and  any^  legislation  that  disturbs  that 
equality  is  an  arbitrary  interference  with  the  liberty  of  contract  which 
no  government  can  justify  in  a  free  land.2 

An  instance  of  a  state  statute  which  was  declared  unconstitu-  Limitation 
tional  may  be  given.    In  1897  New  York  attempted  to  limit  the  fabo?ur' 
number  of  hours  at  which  bakers  might  be  employed  to  not 
more  than  sixty  hours  a  week  or  ten  hours  a  day.    In  declaring 
this  act  unconstitutional  the  court  said  : 

1  Second  Employers'  Liability  Case,  223  U.  S.  I. 

2  Adairv.  United  States,  208  U.  S.  161,  174,  17 5- 


412    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Locknerv.  The  general  right  to  make  a  contract  in  relation  to  his  business  is  a 

part  of  the  liberty  of  th'e  individual  protected  by  the  Fourteenth  Amend- 
ment of  the  Federal  Constitution.  .  .  .  Under  that  provision  no  state 
can  deprive  any  person  of  life,  liberty,  or  property  without  due  process 
of  law.  The  right  to  purchase  or  to  sell  labor  is  part  of  the  liberty  pro- 
tected by  this  amendment,  unless  there  are  circumstances  which  exclude 
the  right.  There  are,  however,  certain  powers,  existing  in  the  sovereignty 
of  each  state  in  the  Union,  somewhat  vaguely  termed  police  powers,  the 
exact  description  and  limitation  of  which  have  not  been  attempted  by 
the  courts.  These  powers,  broadly  stated  and  without,  at  present,  any 
attempt  at  a  more  specific  limitation,  relate  to  the  safety,  health,  morals, 
and  general  welfare  of  the  public.  Both  property  and  liberty  are  held 
on  such  reasonable  conditions  as  may  be  imposed  by  the  governing 
power  of  .the  state  in  the  exercise  of  those  powers,  and  with  such  con- 
ditions as  the  Fourteenth  Amendment  was  not  designed  to  interfere.  .  . . 
We  think  the  limit  of  the  police  power  has  been  reached  and  passed 
in  this  case.  There  is,  in  our  judgment,  no  reasonable  foundation  for 
holding  this  to  be  necessary  or  appropriate  as  a  health  law  to  safeguard1 
the  public  health  or  the  health  of  the  individuals  who  are  following  the 
trade  of  a  baker.  If  this  statute  be  valid,  and  if,  therefore,  a  proper  case 
is  made  out  in  which  to  deny  the  right  of  an  individual,  sui  juris,  as  em- 
ployer or  employee,  to  make  contracts  for  the  labor  of  the  latter  under  the 
protection  of  the  provisions  of  the  Federal  Constitution,  there  would 
seem  to  be  no  length  to  which  legislation  of  this  nature  might  not  go.1 

co^ev.  In  1915  the  court  declared  unconstitutional  a  law  of  Kansas 

which,  following  the  lines  of  a  federal  statute  also  declared  un- ; 
constitutional,  made  it  a  crime  for  an  employer  to  discharge  an 
employee  because  of  membership  in  a  labor  union.2 

These  cases  are  typical  of  a  very  small  number  of  decisions 
which  aroused  criticism.  In  fairness  it  should  be  said  that  they 
are  almost  the  only  ones  to  arouse  such  feeling ;  but  it  is  argued 
that  Congress,  or  a  state  legislature  representing  the  people,  is 
better  able  than  the  court  to  decide  how  the  changed  industrial, 
economic,  and  social  conditions  should  be  met. 

1  Locknerv.  New  York,  198  U.  S.  45,  53,  58.   But  see  Bunting  v.  Oregon  (1916), 
243  U.  S.  426,  where  a  statute  of  Oregon  was  upheld  which  limited  the  hours  at 
which  persons  might  be  employed  in  mills,  factories,  or  manufacturing  establish- 
ments to  ten,  but  allowed  not  more  than  three  hours  of  overtime  in  any  one  day, 
provided  it  was  paid  for  at  the  rate  of  time  and  a  half. 

2  Coppage  v.  Kansas,  236  U.  S.  I. 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     413 

THE  NATURE  OF  REASONING  APPLIED  BY  THE  COURT 

In  the  second  place  criticism  is  aroused  by  the  kind  of  reason- 
ing the  court  follows  to  determine  cases  of  this  sort.  In  two  of 
the  above  cases  "  due  process  of  law  "  was  involved.  Due  process 
of  law  has  never  been  exhaustively  defined,  yet  the  words  of 
Webster  in  the  Dartmouth  College  case,  in  which  he  described  . 
due  process  of  law  or  the  law  of  the  land,  are  frequently  quoted 
with  approval  by  the  court  : 

By  the  law  of  the  land  is  most  clearly  intended  the  general  law  ;  a  Webster's 


law,  which  hears  before  it  condemns,  which  proceeds  upon  inquiry,  theaw 
and  renders  judgment  only  after  trial.  The  meaning  is,  that  every  citi-  of 
zen  shall  hold  his  life,  liberty,  property,  and  immunities  under  the  pro-  Of  law 
tection  of  the  general  rules  which  govern  society.  Everything  which 
may  pass  under  the  form  of  an  enactment  is  not,  therefore,  to  be  con- 
sidered the  law  of  the  land.  If  this  were  so,  acts  of  attainder,  bills  of 
pains  and  penalties,  acts  of  confiscation,  acts  reversing  judgments,  and 
acts  directly  transferring  one  man's  estate  to  another,  legislative  judg- 
ments, decrees,  and  forfeitures,  in  all  possible  forms,  would  be  the  law 
of  the  land.  Such  a  strange  construction  would  render  constitutional 
provisions  of  the  highest  importance  completely  inoperative  and  void. 
It  would  tend  directly  to  establish  the  union  of  all  powers  in  the  legis- 
lature. There  would  be  no  general  permanent  law  for  the  courts  to  ad- 
minister, or  for  men  to  live  under.  The  administration  of  justice  would  be 
an  empty  form,  an  idle  ceremony.  Judges  would  sit  to  execute  legisla- 
tive judgments  and  decrees,  not  to  declare  the  law  or  administer  the 
justice  of  the  country. 

To  the  lay  mind  these  words  may  seem  to  mean  that   the  popular  cnti- 
courts  may  test  any  statute  by  their  own  ideas  of  inherent  justice  court  >sappii- 


under  the  guise  of  determining  whether  it  is  within  "  due  process 
of  law."  In  the  application  of.  this  principle  the  judges,  who  are  clause 
drawn  from  one  particular  class,  gain  the  power  to  enforce  their 
ideas  of  justice  for  those  of  the  representatives  of  the  people.  As 
in  the  New  York  bakers'  cases  the  idea  of  what  was  held  necessary 
for  the  health  of  the  people  by  the  legislature  was  disregarded  by 
the  court,  and  the  ideas  of  what  the  court  held  proper  for  the  peo- 
ple were  enforced.  It  has  been  over  the  judicial  interpretation 
and  application  of  the  words  "  contract  "  and  "  due  process  of  law  " 
which  the  criticism  of  the  courts  has  most  frequently  arisen. 


4I4    THE  GOVERNMENT  OF  THE  UNITED  STATES 

STATUTES  DECLARED  UNCONSTITUTIONAL  BY  A  BARE 

MAJORITY 

• 

Many  of  the  decisions  which  aroused  the  greatest  opposition 
have  been  rendered  by  a  bare  majority  of  the  court.  The 
income  tax  was  declared  unconstitutional  by  a  vote  of  five  to 
four,  so  was  the  first  Employers'  Liability  Act  and  the  Child 
Labor  Law  in  1918,  and  others  might  be  mentioned.  In  the 
early  decisions,  where  the  court  claimed  the  power  to  declare 
a  statute  unconstitutional,  the  court  said  it  would  "  never  resort 
to  that  authority  but  in  a  clear  and  urgent  case."  l  And  Justice 
Story  said  "  .  .  .  a  presumption  never  ought  to  be  indulged,  that 
Congress  meant  to  exercise  or  usurp  any  unconstitutional 
authority,  unless  that  conclusion  is  forced  upon  the  court  by 
language  altogether  unambiguous."2  It  can  hardly  be  argued 
that  the  statute  is  clearly  void  and  its  language  altogether 
unambiguously  unconstitutional,  when  to  four  justices  it  would 
seem  constitutional  and  to  be  within  the  power  allowed.  When 
the  fate  of  a  law,  passed  perhaps  to  remedy  some  widely 
recognized  wrong,  depends  upon  the  ideas  which  one  may 
have  concerning  the  inherent  justice  of  the  case,  the  critics 
seize  it  as  an  example  of  usurpation  by  a  "  judicial  oligarchy." 

VIGOR  OF  DISSENTING  OPINIONS 

In  these  cases  of  divided  decisions  the  minority  of  the  court 
have  expressed  themselves  with  such  ability  that  their  words 
furnish  the  most  telling  criticism  of  the  decision  of  the  majority. 
In  regard  to  the  interpretation  of  the  words  "  liberty  "  and  "  due 
process  of  law,"  Justice  Holmes  thus  expressed  himself  in 
opposition  to  the  majority : 

This  case  is  decided  upon  an  economic  theory  which  a  large  part  of 
the  country  does  not  entertain.  If  it  were  a  question  whether  I  agree 
with  that  theory,  I  should  desire  to  study  it  further  and  long  before 
making  up  my  mind.  But  I  do  not  conceive  that  to  be  my  duty, 
because  I  strongly  believe  that  my  agreement  or  disagreement  has 
nothing  to  do  with  the  right  of  a  majority  to  embody  their  opinions  in 

1  Calder  v.  Bull,  3  Dall.  386,  399. 

2  United  States  v.  Coombs,  12  Peters,  72,  76. 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES      415 

law.  It  is  settled  by  various  decisions  of  this  court  that  state  constitu- 
tions and  state  laws  may  regulate  life  in  many  ways  which  we  as 
legislators  might  think  as  injudicious  or  if  you  like  as  tyrannical  as  this, 
and  which  equally  with  this  interfere  with  the  liberty  to  contract.  ...  I 
think  that  the  word  liberty  in  the  Fourteenth  Amendment  is  perverted 
when  it  is  held  to  prevent  the  natural  outcome  of  a  dominant  opinion, 
unless  it  can  be  said  that  a  rational  and  fair  man  necessarily  would 
admit  that  the  statute  proposed  would  infringe  fundamental  principles 
as  they  have  been  understood  by  the  traditions  of  our  people  and  our 
law.  It  does  not  need  research  to  show  that  no  such  sweeping  con- 
demnation can  be  passed  upon  the  statute  before  us.  A  reasonable 
man  might  think  it  a  proper  measure  on  the  score  of  health.  Men 
whom  I  certainly  could  not  pronounce  unreasonable  would  uphold  it  as 
a  first  installment  of  a  general  regulation  of  hours  of  work.1 

In  his  dissenting  opinion  to  the  Income  Tax  case,  Justice 
Harlan  certainly  furnished  good  argument  for  agitations  for  a 
reconsideration  or  constitutional  amendment : 

But  the  serious  aspect  of  the  present  decision  is  that  by  a  new  justice 
interpretation  of  the  Constitution,  it  so  ties  the  hands  of  the  legislative  the  income 
branch  of  the  government,  that  without  an  amendment  of  that  instru-  Tax 
ment,  or  unless  this  court,  at  some  future  time,  should  return  to  the 
old  theory  of  the  Constitution,  Congress  cannot  subject  to  taxation  — 
however  great  the  needs  or  pressing  the  necessities  of -the  government 
—  either  the  invested  personal  property  of  the  country,  bonds,  stocks, 
and  investment  of  all  kinds,  or  the  income  arising  from  the.  renting  of 
real  estate,  or  from  the  yield  of  personal  property,  except  by  a  grossly 
unequal  and  unjust  rule  of  apportionment  among  the  states.  ...   I  can- 
not assent  to  an  interpretation  of  the  Constitution  that  impairs  and 
cripples  the  just  powers  of  the  National  Government  in  the  essential 
matter  of  taxation,  and  at  the  same  time  discriminates  against  the 
greater  part  of  the  people  of  our  country.2 

Few  critics  have  been  able  to  state  more  forcibly  the  charge 
that  the  court  was  legislating,  under  the  pretense  of  interpreta- 
tion, than  Justice  Harlan  in  the  Tobacco  Trust  case,  who  said : 

.  .  .  But  now  the  court,  in  accordance  with  what  it  denominates 
the  "  rule  of  reason  "  in  effect  inserts  in  the  act  the  word  "  undue," 

1  Locknerv.  New  York,  198  U.S.  45,  75,  76. 

2  Pollock  v.  Farmers'  Loan  and  Trust  Co.,  158  U.S.  601,  685. 


41 6  THE  GOVERNMENT  OF  THE  UNITED  STATES 


Justice 
Harlan  on 
"judicial 
legisla- 
tion" 


The  court 
the  best  in- 
terpreter of 
the  Consti- 
tution 


which  means  the  same  as  "  unreasonable,"  and  thereby  makes  Con- 
gress say  what  it  did  not  say,  what,  as  I  think,  it  plainly  did  not  intend 
to  say,  and  what,  since  the  passage  of  the  act,  it  has  explicitly  refused 
to  say.  It  has  steadily  refused  to  amend  the  act  so  as  to  tolerate  a 
restraint  of  interstate  commerce  even  where  such  restraint  could  be 
said  to  be  "  reasonable  "  or  "  due."  In  short,  the  court  now,  by  judi- 
cial legislation  in  effect,  amends  an  act  of  Congress  relating  to  a  subject 
over  which  that  department  of  the  government  has  exclusive  cognizance.1 

In  view  of  the  vigor  of  these  dissenting  opinions  given  by 
a  member  of  the  court,  it  is  not  surprising  that  the  public  whose 
intent  has  been  thwarted  by  the  decision  feels  that  their  act  is 
not  clearly  unconstitutional  and  is  restive  under  the  power  of  the 
court  to  overturn  their  expressed  will.  And  yet  under  a  fixed 
and  written  constitution  it  is  difficult  to  see  where  the  power  to 
preserve  and  apply  the  principles  of  the  Constitution  could  better 
be  placed.  If  given  to  either  the  executive  or  legislative  branch, 
the  supremacy  of  the  Constitution  would  become  the  supremacy 
of  one  of  those  departments.  The  court  is  the  least  moved  o1 
any  of  the  departments  of  the  government  by  the  violent  partisan 
conflicts  of  the  day.  The  judges  holding  office  for  life  fear  no 
party  revolution.  The  responsibility  of  their  position,  the  knowl- 
edge that  their  decisions  may  lead  to  grave  consequences,  —  to 
war  as  did  the  Dred  Scott  decision,  or  to  a  constitutional  amend- 
ment as  did  the  Income  Tax  decision, — leads  them  to  weigh 
their  words  carefully.  The  fact  that  their  exposition  of  the  Con- 
stitution becomes  a  precedent  and  is  to  a  large  measure  the  rule 
followed  by  their  successors  makes  them  slow  to  alter  the 
existing  conditions. 

Nevertheless,  the  court  always  has  been  and  is  responsive  to 
public  opinion.  The  judges  are  men  of  their  generation  — 
although,  it  must  be  admitted,  from  their  age  often  holding 
opinions  of  a  former  generation,  and  from  their  tenure  of  office 
able  to  enforce  these  opinions  upon  succeeding  generations  —  yet 
they  are  subject  to  the  theories  of  the  age  in  which  they  live,  and 
cannot  defy  long  the  sober  and  thoughtful  opinion  of  their  con- 
temporaries. Thus  the  Supreme  Court  has  at  various  epochs 
altered  its  tone  and  reflected  the  spirit  of  the  times.  Down  to 

1  United  States  v.  American  Tobacco  Co.,  221  U.S.  106. 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES      417 

1835    it    was    uncompromisingly   national    in    sentiment,    and 

stretched  the  powers  of  the  central  government  to  the  utmost. 

From    1835  until  the  Civil  War,  under  Chief  Justice  Taney, 

while  the  court  showed   greater   liberality   in  interpreting  the 

powers  reserved  to  the  states,  it  never  departed  from  the  posi- 

tion held  by  Marshall  that  the  legal  and  political  supremacy 

was  vested  in  the   national    government.1    From  1861   onward, 

.the  court,  with  changed  composition,  extended  its   jurisdiction  Newcondi- 

and  emphasized  the  power  of  the  central  government.    With  the  th^Four* 

changed  social,  economic,  and  industrial  conditions,  new  problems  Amendment 

have  arisen  which  the  legislatures  have  attempted  to  solve.    The  Place  new 

r  i      A  i  burdens  on 

words  or  the  rourteenth  Amendment  nave  taken  on  new  mean-  the  court 
ings,  and  frequently  by  the  interpretation  of  them  the  court  has 
delayed  such  solution  as  the  legislature  desired.  But  the  court 
is  still  responsive  to  public  opinion  and  where  it  can  conscien- 
tiously advance,  it  attempts  to  give  effect  to  the  wishes  of  the 
people.  The  large  number  of  acts  involving  the  exercise  of 
the  police  power  which  have  been  upheld  by  the  court  show 
that  the  court  is  not  so  reactionary  in  its  interpretation  of  "due 
process"  and  "contract"  as  the  decision  in  the  Lockner  case 
might  indicate.  The  approval  of  the  second  Employers'  Liability 
Act  revealed  the  fact  that  where  Congress  was  ready  to  be  con- 
tent with  its  undoubted  powers,  the  court  was  willing  to  allow  a 
great  advance  in  legislation  which  even  repealed  some  of  the 
most  important  rules  of  common  law. 
As  Professor  Pound  has  said  : 

.  .  .  The  difficulties  in  the  relation  of  the  courts  to  legislation  grew  Professor 
out  of  (i)  overminute  law-making,  which  imposes  too  many  hard  and 


fast  details  upon  the  courts,  (2)  crude  legislation,  which  leaves  it  to  the  ties  of  the 
courts,  to  work  out  what  the  legislature  purported  to  do  and  did  not,   the  court  to 
(3)  absolute  theories,  both  of  law  and  of  law-making,  which  lead  both  legislation 
courts  and  legislatures  to  attempt  too  many  universal  rules,  to  attempt 
to  stereotype  the  ideas  of  the  time,  as  law  for  all  time,  and  have  led 
courts  at  times  to  enforce  too  strongly  the  doctrines  of  the  traditional 

1  See  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States, 
Vol.  I,  p.  84  ;  see  also  Bryce,  American  Commonwealth,  Vol.  I,  chap,  xxiv, 
"  The  Working  of  the  Courts,"  especially  pp.  274-277,  for  the  effect  of  public 
.opinion  upon  the  courts,  and  their  changed  attitude  due  to  this. 


Popular 
criticism 

undiscerning 


41 8  THE  GOVERNMENT  OF  THE  UNITED  STATES 

system,  at  the  expense  of  newer  principles,  and  finally  (4),  by  no  means 
least,  insufficient  attention  to  the  problem  of  enforcement  of  rules  after 
they  are  made.1 

Popular  criticism  is  apt  to  see  only  the  evils  of  the  courts  in 
attacking  the  application  of  worn-out  legal,  political,  or  economic 
theories  to  present  conditions,  and  fails  to  perceive  the  faults  of 
the  legislation  which  the  courts  are  called  upon  to  interpret  and 
apply.  The  fact  that  crude '  legislation  designed  for  good  pur- 
pose is  set  aside  by  the  court  by  old-fashioned  reasoning,  often- 
times is  held  to  excuse  and  conceal  the  crudities  of  the  statutes 
and  to  furnish  material  for  an  attack  upon  the  courts. 


Conflicts 
with  the 
political 
departments 


Jefferson's 
attack  on 
the  court 


Decision  in 
Chisholm  v. 
Georgia 
reversed  by 
the  Eleventh 
Amendment 


THE  COURT  AND  POLITICS 

The  power  of  the  court  to  declare  legislation  unconstitutional 
has  brought  the  judiciary  into  conflict  with  the  political  depart- 
ments of  both  state  and  national  governments.  The  immediate 
will  of  the  people  is  expressed  in  theory  at  least,  in  the  acts  of 
their  representatives  organized  into  political  parties.  When  at 
times  the  decisions  of  the  court  have  run  counter  to  the  opinion 
of  the  party  in  majority  they  have  been  made  political  issues ; 
and  political  force  has  been  resorted  to,  to  negative  or  reverse 
them.  Jefferson  in  attacking  the  Federalist  proclivities  of  the 
court  under  Marshall  said,  "  The  Judiciary  of  the  United  States 
is  the  subtle  corps  of  sappers  and  miners  constantly  working 
underground  to  undermine  the  foundations  of  our  constitutional 
fabric."  And  the  unsuccessful  impeachment  of  Chase  was 
engineered  by  the  Jeffersonians  quite  as  much  to  pave  the  way 
for  the  political  control  of  the  court  as  to  remove  the  Justice. 

Two,  if  not  three,  of  the  decisions  of  the  court  have  become 
such  political  issues  that  constitutional  amendments  have 
reversed  them.  The  first,  Chisholm  v.  Georgia,  in  i/932  held 
that  suit  could  be  brought  against  a  state  by  a  private  citizen. 
This  was  extending  the  judicial  power  of  the  Constitution 
in  a  way  that  even  Hamilton  asserted  would  never  be  done,  - 
an  opinion  which  Marshall  echoed  in  the  Virginia  convention. 

1  Roscoe  Pound,  The  Courts  and  Legislation,  American  Political  Science 
Review,  Vol.  VII,  pp.  361,  382.  2  2  Dall  ?  4ig< 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES     419 

Nevertheless,  the  court  gave  judgment  against  the  state  on  the 
ground  of  default ;  and  the  matter  became  one  for  political 
agitation,  and  the  Eleventh  Amendment  was  the  result.  This 
reversed  the  decision  of  the  court  and  declared  that  a  state 
should  not  be  subject  to  suit  by  a  citizen. 

In  1895  the  Supreme  Court  declared  the  Income  Tax  passed  income  Tax 
by  the  Democratic  Congress  in  the  previous  year  unconstitutional  Cise>  l895 
—  an  apparent  reversal  of  a  previous  decision.    It  must  be  con- 
fessed that  in  giving  the  opinion  the  language  of  Chief  Justice 
Fuller  was  not  dispassionate  when  he  said  : 

The  present  assault  upon  capital  is  but  beginning.  It  will  be  but  the 
stepping-stone  to  others,  larger  and  more  sweeping,  till  our  political  » 
contests  will  become  a  war  of  the  poor  against  the  rich  ;  a  war  con- 
stantly growing  in  intensity  and  bitterness.  ...  If  the  purely  arbitrary 
limitation  of  $4000  in  the  present  law  can  be  sustained,  none  having 
less  than  that  amount  of  income  being  assessed,  or  taxed  for  the 
support  of  the  government,  the  limitation  of  future  Congresses  may 
be  fixed  at  a  much  larger  sum,  at  five  or  ten  or  twenty  thousand  dollars, 
parties  possessing  an  income  of  that  amount  alone  being  bound  to  bear 
the  burdens  of  government ;  or  the  limitation  may  be  designated  at  such 
an  amount  as  a  Board  of  "  Walking  Delegates  "  may  deem  necessary.1 

Neither  did  the  vigorous  dissenting  opinion  of  Harlan,  which 
has  been  quoted,  tend  to  keep  the  subject  within  the  realm  of 
judicial  consideration.  Nor  was  the  Democratic  party  slow  to 
take  up  the  challenge,  for  in  its  platform  of  1 896  after  denouncing 
the  decision  it  continued  : 

We  declare  that  it  is  the  duty  of  Congress  to  use  all  the  constitu-  Decision  ae- 
tional  power  which  remains  after  that  decision,  or  which  may  come  from  JeinSratie 
its  reversal  by  the  court  as  it  may  hereafter  be  constituted,  so  that  the  platform,  1896 
burdens  of  taxation  may  be  equally  and  impartially  laid,  to  the  end  that 
wealth  may  bear  its  due  proportion  of  the  expenses  of  the  government.2 

This  sentiment  has  recurred  in  varying  forms  in  every  platform 
ever  since.  Finally  in  1913  the  controversy  was  settled  by  the 
adoption  of  the  Sixteenth  Amendment,  declaring  that  Congress 
could  levy  a  tax  upon  incomes  from  whatever  source  derived. 

1  Pollock  v.  Farmers'  Loan  and  Trust  Co.,  157  U.  S.  429,  607. 

2  Edward  Stanwood,  A  History  of  the  Presidency,  p.  544. 


420    THE  GOVERNMENT  OF  THE  UNITED  STATES 

TheDred  In  like  manner,  when  in  1857  Chief  Justice  Taney  attempted 

scott  case       tQ  settle  the  question  of  slavery  in  the  Dred  Scott  case,  and 

really  opened  up  the  territories  to  slavery,  the  court  was  drawn 

into   politics.    The    Democrats   who   assembled    at    Charleston 

in  1860  adopted  a  platform  which  declared  : 

Approved  in          Inasmuch  as  differences  of  opinion  exist  in  the  Democratic  party  as 
piaTformllseo   to  the  nature  and  extent  of  the  powers  of  a  territorial  legislature,  and 
as  to  the  powers  and  duties  of  Congress,  under  the  Constitution  of  the 
United  States,  over  the  institution  of  slavery  within  the  Territories,  — 
•  Resolved,  "  That  the  Democratic  party  will  abide  by  the  decisions  of 
the  Supreme  Court  of  the  United  States  on  the  questions  of  constitu- 
tional law.1 

TKe  Republican  party,  however,  at  Chicago,  in  the  seventh 
resolution  of  its  platform,  directly  attacked  the  decision  of  the 
court  in  these  words : 

Denounced  in  That  the  new  dogma  that  the  Constitution  of  its  own  force,  carries 
slavery  into  any  or  all  of  the  Territories  of  the  United  States,  is 
a  dangerous  political  heresy,  at  variance  with  the  explicit  provisions  of 
that  instrument  itself,  with  contemporaneous  exposition  and  with  legis- 
lative and  judicial  precedent ;  is  revolutionary  in  its  tendency,  and 
subversive  of  the  peace  and  harmony  of  the  country.2 

Whether  the  war  was  fought  to  abolish  slavery  or  to  preserve 
the  Union,  it  resulted  in  the  passage  of  the  Thirteenth  Amend- 
ment, which  recalled  the  obiter  dictum,  by- which  the  court  in 
the  Dred  Scott  case  had  attempted  to  settle  the  dispute. 
Attack  upon  The  Democratic  platform  of  1 896  attacked  the  power  of  the 
Democratic111  courts  in  another  way.  As  has  been  pointed  out,  corporations, 
platform,  is*  particularly  railroads,  from  their  operations  in  various  states,  are 
able  to  take  their  cases  into  the  courts  of  the  United  States, 
and  have  invoked  relief  in  equity  in  the  conflicts  with  their 
employees.  Such  was  the  case  in  1894,  when  in  the  Pullman 
strike  at  Chicago  an  injunction  was  issued  ordering  the  em- 
ployees not  to  interfere  with  the  transmission  of  the  mails  or 
interstate  commerce  in  any  form.  The  leaders  of  the  strike 
were  arrested,  fined,  and  imprisoned  for  contempt  of  court 
because  they  disobeyed  the  injunction.  This  was  attacked  in 

1  Edward  Stanwood,  A  History  of  the  Presidency,  p.  283.       2  Ibid.  p.  292. 


JUDICIAL  SYSTEM  OF  THE  UNITED  STATES      421 


the  Democratic  platform  of  1896,  which  demanded  a  trial  by 
jury  for  all  persons  arrested  for  indirect  contempt  of  court; 
and  denounced  the  process  under  the  term  of  "  government  by 
injunction."  This  has  been  repeated  in  almost  every  platform 
since  that  date.  To  conciliate  the  large  labor  vote  the  Republicans 
at  length  made  some  concessions  for  they  admitted  that  "  rules 
of  procedure  in  federal  courts  with  respect  to  the  issuance  of  the 
writ  of  injunction  should  be  more  accurately  denned  by  statute," 
and  President  Taft,  in  his  message  of  1909,  urged  that  some 
congressional  action  should  be  taken  to  carry  out  this  pledge. 

Not  only  have   specific   decisions   of .  the  court   been  made  power  of 
subjects  of  political  controversy,  but  in  recent  years,  as  in  the  declare*0 
early  years   of   the   Constitution,   the   power  of   the   courts  to  J^^itu 
declare  a  statute  unconstitutional  has  been  specifically  attacked,  tionai 
The  method  of  the  attack  is  a  twofold  one,  aimed  alike  against 
individual  judges  and  the  decisions  of  the  court. 

By  the  recall  of  judges,  any  judge,  upon  presentation  of  a  (i)  Recall 
petition  signed  by  the  requisite  number  of  voters,  may  be  °  3U 
removed  from  office.  A  new  election  is  held,  at  which  the  judge 
against  whom  the  petition  was  directed  may  or  may  not  be  a 
candidate.  If  he  is  a  candidate  and  is  reflected  he  continues  to 
exercise  his  functions.  Should  he  be  defeated,  however,  he  is 
held  to  be  recalled  from  his  office.  This  device  has  already  been 
adopted  in  several  states.  A  proposal  for  a  constitutional  amend- 
ment was  introduced  Aprif  7,  1913,  by  Congressman  Lafferty,1 
which  provided  for  the  election  of  all  federal  judges  by  a  vote 
of  the  people,  for  twelve-year  terms,  and  provided  for  a  recall  of 
all  judges,  both  of  the  Supreme  Court  and  inferior  courts,  at  any 
general  election  at  which  presidential  electors  should  be  chosen. 
There  is  little  possibility  that  such  a  revolutionary  amendment  will 
ever  be  adopted  in  the  near  future,  but  it  shows  the  jealousy  and  hos- 
tility with  which  the  judiciary  is  regarded  in  some  quarters.  Further- 
more, it  is  but  an  attempt  to  establish  for  the  federal  judiciary  the 
principle  of  election,  which  is  practiced  in  an  overwhelming  num- 
ber of  states,  and  the  recall  of  judges,  which  is  in  vogue  in  few. 

The  second  revolutionary  attack  by  a  political  party  is  known  00  sjyH 
as  the  recall  of  judicial  decisions.    This,  as  regards  state  courts,  decisions 

1  House  Joint  Resolution  26,.  63d  Cong.,  ist  Sess. 


422    THE  GOVERNMENT  OF  THE  UNITED  STATES 

was  indorsed  by  Theodore  Roosevelt  and  the  Progressive  party 
in  its  platform  of  1912,  which  declared: 

That  when  an  act  passed  under  the  police  power  of  the  states  fe 
held  unconstitutional  under  the  state  constitution  by  the  courts,  the 
people,  after  an  ample  interval  for  deliberation,  shall  have  opportunity 
to  vote  on  the  question  whether  they  desire  the  act  to  become  law 
notwithstanding  such  decision. 

In  dealing  with  state  constitutions  this  seems  to  be  but  a  short 
method  of  amending  the  constitution.  But  there  has  been  at 
least  one  attempt  to  apply  it  to  the  federal  Constitution.  In 
December,  1912,*  Senator  Bristow  in  a  resolution  proposed  an 
amendment  to  the  Constitution,  providing  that  any  decision  of 
the  federal  Supreme  Court  declaring  unconstitutional  an  act  of 
Congress  may  be  submitted  to  the  electors,  and  that  by  a  vote 
of  a  majority  of  the  congressional  districts  and  of  the  states 
such  act  should,  notwithstanding  the  decision  of  the  Supreme 
Court,  become  a  law.  This  likewise  seems  but  a  rough-and- 
ready  method  of  surmounting  the  difficulties  of  amending  the 
Constitution ;  but  like  the  resolution  of  the  Progressive  party  it 
has  serious  objections.  A  recall  of  a  decision  declares  but  a  single 
law  constitutional,  despite  such  a  decision.  A  constitutional  amend- 
ment establishes  a  principle  under  which  many  laws  may  be 
passed.  To  illustrate,  had  Senator  Bristow's  scheme  been  suc- 
cessfully invoked  in  1895,  the  income  tax  act  of  1894  might  have 
been  declared  law,  but  only  that  particular  law ;  and  neither  the 
corporation  tax  of  1910  nor  the  graduated  income  tax  of  1913 
would  have  been  clearly  within  the  Constitution.  But  since 
Senator  Bristow's  proposal  the  Constitution  has  been  amended 
in  the  orderly  and  regular  method,  after  long  consideration  and 
agitation  it  is  true,  and  not  only  the  particular  tax  upon  particular 
incomes  mentioned  in  the  act  of  1894,  but  a  tax  upon  "all 
incomes  from  whatever  source  derived  "  is  constitutional.  Deci- 
sions of  constitutional  questions  tend  to  become  political  issues,  and 
the  inevitable  problem  arises  whether  it  is  best  for  the  United 
States  to  continue  under  a  rigid  Constitution,  difficult  and  slow  of 
change,  or  under  the  flexible  type  of  England  and  the  European 
countries. 

1  Senate  Resolution  142,  62d  Cong.,  3d  Sess. 


CHAPTER  XVII 
THE  WAR  POWERS  OF  CONGRESS 

The  experiences  of  the  Revolution  had  shown  the  necessity  constitu- 
of  giving  the  central  government  adequate  power  in  time  of  fJJ^lifSJj8 
war.  In  the  Constitution  this  grant  of  power  is  found  in  Article  I,  power 
Sect,  viii,  and,  arranged  in  logical  sequence,  gives  Congress  the 
following  powers:  (i)  the  right  to  raise  and  support  an  army 
and  navy ;  (2)  the  right  to  make  rules  and  regulations  for  the 
government  of  the  same  ;  (3)  the  right  to  provide  for  the  organ- 
izing, arming,  and  disciplining  of  the  militia  of  the  states  ;  (4)  the 
right  to  utilize  this  militia  to  execute  the  laws,  suppress  insurrec- 
tions, and  repel  invasions  ;  (5)  the  right  to  declare  war  and  make 
rules  for  captures  on  land  arfd  sea ;  (6)  the  right  to  make  all 
laws  necessary  and  proper  to  carry  into  effect  these  powers. 
Article  I,  Sect,  x,  clauses  i  and  3,  prohibits  the  states  from 
exercising  their  military  power  in  a  way  to  hamper  the  federal 
government ;  while  the  Second  Amendment  recognizes  the 
necessity  of  a  militia  and  forbids  Congress  to  pass  laws  prohibit- 
ing the  right  to  bear  arms.  It  is  also  necessary  to  remember  that 
Congress  in  the  prosecution  of  war  may  exercise  to  the  full  all 
the  general  powers  granted  to  it,  among  which  are  the  powers 
to  levy  taxes,  borrow  money,  or  coin  the  same,  as  well  as  those 
granted  by  the  clause  just  quoted,  which  gives  Congress  the 
power  to  pass  all  laws  necessary  for  the  prosecution  of  the  war. 

With  these  grants  Congress  has  almost  unlimited  power,  un-  whythegov- 
divifled  with  the  states,  and  Congress  must  meet  and  bear  the  ^"ccoine S 
responsibility.     Enough  power  is  granted  to  make  the  United  militaristic 
States  the  most  militaristic  nation  in  the  world.    But  the  tradi- 
tions of  the  country  have  been  absolutely  against  such  a  develop- 
ment.   Hatred  of  standing  armies  alike  characterized  the  Puritans 
of  New  England,  the  Dutch  and  Quakers  of  the  middle  colonies, 
and  the  Cavaliers  of  Virginia  ;  and  many  of  the  early  immigrants 
came  to  escape  the  burdens  so  imposed.    Reliance  Upon  a  citizen 

423 


The  regular 
army 


424    THE  GOVERNMENT  OF  THE  UNITED  STATES 

militia,  as  an  Anglo-Saxon  institution,  was  firmly  rooted  in  the 
original  colonists  and  quickly  adopted  by  the  immigrants.  Con- 
sequently the  regularly  organized  standing  army  of  the  United 
States,  while  excellent  in  character,  has  been  pitifully  small  and 
inadequate  for  a  country  so  large. 

THE  ARMY 

Acting  upon  the  constitutional  grant,  the  first  Congress,  on 
September  29,  1789,  took  over  the  troops  which  had  been  raised 
under  a  resolution  of  the  Congress  of  the  Confederation.  In  1790 
was  passed  the  first  army  organization  act,  which  provided  for  a 
regular  standing  army,  officers  and  men,  not  to  exceed  I2i6.1 
Since  that  time  there  have  been  frequent  reorganizations ;  the 
most  important  in  recent  times  being  in  1901,  1916,  and  1917. 
The  reorganization  of  1901  was  made  under  the  administration 
of  Secretary  Root,  and  provided  for  a  definite  number  of  regi- 
ments for  each  service  and  a  fixed  number  of  officers.  The 
number  of  privates  was  left  to  be  fixed  by  executive  order  and 
congressional  appropriation,  at  a  number  between  60,000  and 
100,000.  Thus  there  always  existed  a  skeleton  organization  of 
an  army  of  100,000,  while  the  actual  number  varied  from  about 
60,000  to  80,000.  In  addition  Secretary  Root  organized  the 
General  Staff,  which  was  expected  to  secure  the  coordination  of 
the  various  branches  of  the  service.2 

In  1916,  owing  to  the  outbreak  of  the  war  in  Europe  and  the 
consequent  agitation  for  "  preparedness  "  in  this  country,  a  great 
increase  in  the  standing  army  was  demanded.  Proposals  of  all 
kinds  were  submitted  to  Congress,  which  in  the  main  looked 
towards  three  lines  of  increase  :  a  larger  standing  army ;  a  very 
large  force  of  volunteers  known  as  the  "  Continental  Army," 
part  of  which  was  to  be  kept  in  active  service  and  part  in  re- 
serve ;  and  the  "  federalization  of  the  militia."  The  Secretary  of 
War,  L.  M.  Garrison,  favored  the  first  and  second  of  these  plans, 
but  encountering  the  opposition  of  Mr.  Hay,  chairman  of  the 
House  Committee  on  Military  Affairs,  and  failing  to  secure  the 
support  of  the  president,  he  resigned.  The  House  then  prepared 


1  U.  S.  'Stat.  at  Large,  Vol.  I,  p.  1 19. 


2  See  Chapter  X. 


THE  WAR  POWERS  OF  CONGRESS  425 

a  bill  which,  as  far  as  the  regular  army  was  concerned,  provided 
for  a  force  of  about  143,000,  and  adopted  the  plan  for  the 
further  federalization  of  the  militia.  The  Senate  increased  the 
number  of  the  regular  army  to  178,000  and  adopted  the  Garrison 
plan  for  a  continental  army,  and  agreed,  with  some  modifications, 
to  the  House  plan  for  a  federalized  militia.  In  conference,  the 
federal  volunteer  force,  or  the  continental  army,  was  dropped, 
but  the  Senate  succeeded  in  fixing  the  size  of  the  army  at  175,000, 
while  the  plan  for  the  federalization  of  the  National  Guard 
was  retained. 

It  should  be  remembered  that  this  plan  is  subject  not  merely  constitu- 
te legislation  by  future  Congresses  but  to  a  constitutional  limita- 
tion  as  well.  Fear  of  standing  armies  was  so  strong  in  1787 
that  Congress  was  forbidden  to  make  any  appropriation  for  the  army 
support  of  the  army  for  a  period  longer  than  two  years.  Hence, 
although  a  future  Congress  might  repeal  this  legislation,  every 
subsequent  Congress  must  take  affirmative  action  in  order  to 
continue  the  system.  It  is  thus  impossible  for  Congress  to  adopt 
a  program  for  more  than  two  years  for  the  army,  although  this 
may  be  done  in  the  case  of  the  navy. 

THE  MILITIA 

"  To   provide  for  organizing,   arming,   and    disciplining   the  constitu- 
militia,  and  for  governing  such  part  of  them  as  may  be  employed  * 
in  the  service  of  United  States."  1 

"  A  well-regulated  militia  being  necessary  to  the  security  of  a 
free  State,  the  right  of  the  people  to  keep  and  bear  arms  shall 
not  be  infringed."2 

"  To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  Union,  suppress  insurrections,  and  repel  invasions."  3 

These  clauses  show  the  importance  which  the  framers  of  the  Main  secu- 
Constitution  attached  to  the  militia.    Standing  armies  were  con-  militia* 
trary  to  their  habits,  and  even  the  hard  experience  of  the  Revo- 
lution had  not  weaned  them  from  their  belief  that  the  militia 
should  be  the  main  security  of  a  free  state.    This  idea  not  only 

1  The  Constitution  of  the  United  States,  Article  I,  Sect,  viii,  clause  16. 

2  Ibid.,  Amendment  II. 

8  Ibid.,  Article  I,  Sect,  viii,  clause  15. 


426    THE  GOVERNMENT  OF  THE  UNITED  STATES 

found  expression  in  the  Constitution  but  was  developed  in  legis- 
lation as  well.  The  regular  establishment  called  for  but  1200 
men,  consequently  it  was  evident  that  Congress  was  to  depend 
upon  the  militia  for  the  performance  of  the  greater  part  of  the 
military  duties.  Nevertheless  no  law  was  passed  until  1792  for 
the  arming  and  disciplining  of  the  militia.1 

The  miiitia  Section  i  of  this  law  provided  for  universal  military  service 
of  I793  of  all  white,  able-bodied  citizens  between  the  ages  of  eighteen 
and  forty-five.  All  such  were  to  be  enrolled  by  the  commanding 
officer  of  the  district.  Members  of  the  militia  must  furthermore 
provide  their  own  arms  and  equipment,  together  with  the  neces- 
sary powder  and  ball.  The  fact  that  the  democratic  system  of 
universal  service  was  adopted,  together  with  a  system  of  terri- 
torial recruiting,  seemed  of  such  vital  importance  in  the  eyes  of 
a  trained  observer  that  all  the  other  defects  of  the  law  were 
considered  as  secondary.2  But  there  were  certain  very  funda- 
mental defects.  Instead  of  having  one  small  national  army  sup- 
ported by  indirect  taxation,  there  were  thirteen  or  more  state 
armies  supported  by  direct  contributions  of  the  citizens  of  each 
state.  Even  this  might  have  been  tolerated  had  the  militia 
been  well  disciplined  and  welt  trained ;  but  as  it  was  they  were 
"totally  ignorant  of  the  first  principles  of  military  art."3 
Finally,  this  law  contained  no  penalty,  and  the  citizens  might 
or  might  not  comply  with  its  provisions.  The  democratic  prin- 
ciple of  universal  service  turned  out  to  be  a  scheme  for  the 
organization  and  training  of  their  own  militia,  with  the  result 
that  the  militia  was  neither  well  regulated  nor  uniform  through- 
out the  country. 

Deficiencies         This  law  remained  in  nominal  force  for  over  a  hundred  years, 

of  militia  act      1,1  i  •      n        »       i 

of  I79a  although  practically  obsolete  a  few  years  after  its  passage.    Thei 

militia  of  the  states,  as  such,  has  not  always  proved  a  very  effec- 
tive force.  For  example,  in  the  War  of  1812  the  governors 
of  Massachusetts  and  Connecticut  refused  to  call  out  their  militia, 
when  summoned  to  do  so  by  the  president  of  the  United  States. 
Although  the  Supreme  Court  of  the  United  States  overruled*; 

1  U.  S.  Stat.  at  Large,  Vol.  I,  p.  271. 

2  Emory  Upton,  Military  Policy  of.  the  United  States,  p.  85. 
8  Ibid. 


THE  WAR  POWERS  OF  CONGRESS  427 

the  Supreme  Court  of  Massachusetts  and  held  that  the  presi- 
dent was  the  sole  judge  of  the  exigency,  there  seemed  no 
method  by  which  an  unwilling  state  could  be  compelled  to  call 
out  its  militia. 

Attempts  have  been  made  at  various  times  to  reorganize  and  Revised 
improve  the  militia,  the  most  important  of  which  were  in  1903 
and  in  1916.  By  these  laws  every  able-bodied  citizen  between  the 
ages  of  eighteen  and  forty-five  is  considered  a  member  of  the 
militia,  which  is  divided  into  two  classes,  —  the  organized,  known 
as  the  National  Guard,  and  the  unorganized,  or  the  Reserve 
Militia.  Enlistment  in  the  National  Guard  is  voluntary.  Of 
still  greater  importance  are  the  provisions  for  a  uniform  equip- 
ment and  armament.  On  occasions  in  the  past  the  militia  has 
sometimes  been  found  of  little  value  because  its  arms  and  equip- 
ment were  such  that  it  could  not  be  used  with  the  regular  troops. 
Delay  has  resulted  in  obtaining  the  proper  equipment.  The  fed- 


i  /-        •  »          i  •  i    •       tion  of  the 

eral  government  now  furnishes  the  arms  and  equipment  and  in 


return  has  the  privilege  of  inspection  and  discipline.  Most  impor- 
tant of  all,  the  militia  can  be  summoned  directly  by  the  president 
without  the  intervention  of  the  state  governor.  By  the  reorgani- 
zation of  1916  the  militia  is  still  further  federalized.  Pay  is  given 
to  the  officers  and  men  provided  they  are  drilled  a  certain  number 
of  hours  and  attain  a  certain  standard,  which  is  enforced  by  fre- 
quent inspections  by  federal  officers.  It  is  expected  that  within 
five  years  this  force  will  reach  a  minimum  of  four  hundred  and 
twenty-four  thousand.  Under  the  terms  of  the  new  act  the  militia 
will  be  required  to  give  three  years  of  active  service  and  three 
years  in  the  reserve,  subject  to  certain  calls. 

In  1792*  Congress  passed  a  statute  regulating  the  right  of  Theutmza- 
utilizing  the  militia.  By  this  act  Congress  vested  in  the  president 


the  power  of  calling  upon  the  militia  of  the  states  most  con-  Ofl79b 
cerned.  This  was  repealed  in  1795  when  another  act  of  similar 
import  was  passed,  and  although  subject  to  frequent  revisions, 
still  the  principle  remained  the  same  until  the  Reorganization 
Act  of  1916.  By  the  act  of  1795  Congress  intrusted  to  the  presi- 
dent the  decision  of  utilizing  the  militia  to  suppress  domestic 
disturbances,  nothing  being  said  concerning  his  right  to  utilize 

1  U.  S.  Stat.  at  Large,  Vol.  I,  p.  264. 


428  THE  GOVERNMENT  OF  THE  UNITED  STATES 

it  for  foreign  service.  The  leading  case  was  decided  in  1827,  when 
the  prerogative  of  the  president  was  upheld  in  these  words  : 

opinion  in  Is  the  president  the  sole  and  exclusive  judge  whether  the  exigency 

Martinv.Mott  ^as  arisen,  or  is  it  to  be  considered  as  an  open  question,  upon  which 
every  officer  to  whom  the  orders  of  the  president  are  addressed,  may 
decide  for  himself,  and  equally  open  to  be  contested  by  every  militia- 
man who  shall  refuse  to  obey  the  order  of  the  president  ?  We  are  of 
the  opinion  that  the  authority  to  decide  whether  the  exigency  has  arisen 
belongs  exclusively  to  the  president,  and  that  his  decision  is  conclusive 
upon  all  other  persons.1 

Before  1916  These  acts,  it  will  be  noticed,  only  vest  in  the  president  the 
power  to  call  forth  the  militia  for  service  within  the  territory  of 


militia  only     fae  Umted  States.    Previous  to  1916  he  had  no  power  to  utilize 

domestic        the  militia  for  foreign  service.    This  was  circumvented,  however, 

by  calling  for  volunteers  and  accepting  as  units  such  militia  as 

should  volunteer.    It  should  be  clearly  understood,  however,  that 

this  was  purely  a  voluntary  service  on  the  part  of  the  militia, 

who,  until  they  were  actually  accepted  as  volunteers,  were  not 

subject  to  the  orders  of  the  president  but  to  those  of  the  gov- 

By  act  of  1916  ernors  of  the  states.   The  act  of  1916,  however,  gave  the  presi- 

on\uthor?-nt   dent  additional  power.     He  still  retains  the  power  of  utilizing 

con°ressma    tne  National  Guard,  according  to  his  judgment,  within  the  terri- 

draft  the        tory  of  the  United   States  ;    but  in  addition,   when    Congress 

Guard  from     authorizes  the  use  of  the  armed  forces  in  excess  of  the  regular 

Xtothe  anny  army,  the  president  may  draft  into  military  service  any  or  all 

members  of  the  National  Guard.   This  double  military  allegiance 

of  the  militiaman  is  emphasized  in  the  very  oath  he  takes,  for 

he  swears  to  obey  the  orders  of  the  president  and  the  governor 

of  his  state.    When  called  upon  by  the  president  he  is  automati- 

cally relieved  of  his  allegiance  to  the  state  and  becomes  subject 

to  the  orders  of  the  federal  government.    These  new  powers  of 

the  president  and  the  federalization  of  the  National  Guard  will 

doubtless  produce  a  far  more  efficient  military  instrument,  but 

whether  they  have  not  imposed  such  arduous  burdens  upon  the 

militia  as  to  discourage  enlistment  is  a  question  yet  to  be  settled. 

1  Martin  v.  Mott,  12  Wheat.  19,  29,  30. 


THE  WAR  POWERS  OF  CONGRESS  429 

VOLUNTEERS 

A  third  branch  of  the  army  which  has  been  utilized  in  all  the  volunteers  in 
important  wars  of  the  United  States  is  composed  of  volunteers,  ^civn'war 
During  the  War  of  1812,  30,000  volunteers  were  called  for  and  fc^arwitfc' 
only  10,000  actually  served,  while  during  the  Civil  War  six  calls 
for  volunteers  were  made  and,  allowing  for  reenlistments,  over 
a  million  responded.  In  the  war  with  Spain  the  president  called 
for  a  total  of  125,000  volunteers,  and  this  number  was  exceeded. 
There  is  no  question  that  after  discipline  and  training  these  vol- 
unteers do  excellent  service,  but  the  delay  necessary  for  this 
training  has  sometimes  resulted  in  the  employment  of  untrained 
troops  at  a  frightful  cost.  It  is  therefore  argued  that  it  is  more 
economical  to  maintain  an  adequate  standing  army  supported  by 
a  trained  and  disciplined  militia  than  to  rely  upon  the  enthusiasm 
of  untrained  volunteers.  This  is  what  the  legislation  urged  by 
Secretary  Garrison  hoped  to  accomplish.  In  the  Senate  a  pro-  The  proposed 
vision  was  added  to  the  reorganization  bill,  providing  for  a  "Con-  Army1161 
tinental  Army  "  composed  of  federal  volunteers,  who  should  be 
trained  for  two  months  in  each  of  their  first  three  years  of 
enlistment,  and  then  go  on  the  reserve  lists  for  three  years. 
It  was  proposed  to  raise  by  yearly  increments  of  34,000  a 
force  of  500,000.  This  provision,  however,  was  not  acceptable 
to  the  House  and  was  dropped  in  conference.  Hence,  as  the 
law  stands,  the  president  has  at  his  immediate  command  a  regu- 
lar army  of  175,000,  and  the  federalized  National  Guard,  which 
theoretically  has  a  minimum  of  424,000,  although  actually  the 
numbers  are  far  less.  Even  this  force  will  prove  inadequate  for 
any  serious  war,  and  volunteers  will  have  to  be  called  for  or  some 
plan  of  compulsory  service  adopted.  But  instead  of  being  rushed 
into  the  service  they  can  be  adequately  trained  and  prepared 
while  the  increased  regular  army  and  National  Guard  bear  the 
first  shock. 

THE  NAVY 

At  the  end  of  the  Revolution  the  three  remaining  ships  of  The  decline 

the  navy  were  sold  and  the  navy  was  abolished.   The  rebuilding  ing  Of  the 

of  the  national  navy  did  not  begin  until  1 794,  when  six  frigates  navy 
were  ordered.    By  1812  the  United  States  had  sixteen  effective 


430    THE  GOVERNMENT  OF  THE  UNITED  STATES 

vessels  which  rendered  good  service  in  the  war  with  England. 
Between  1814  and  the  Civil  War  there  was  little  development, 
but  during  the  Civil  War  there  was  an  enormous  expansion,  and 
at  its  close  there  were  over  six  hundred  vessels  in  commission. 
After  the  war,  the  navy  was  rapidly  reduced,  and  few  new  vessels 
were  built.  The  beginning  of  the  present  navy  dates  from  1885, 
since  which  time  the  growth,  although  showing  some  lapses, 
has  been  fairly  steady  and  consistent.  Before  the  outbreak  of 
the  World  War  the  United  States  ranked  third  among  the  powers 
of  the  world,  being  surpassed  only  by  Great  Britain  and  Germany. 


The  navy 


Plan  of  the 
administra- 
tion 


The  army 


The  National 
Guard 


The  draft 


The  plan 
opposed  in 
the  House 


THE  MILITARY  AND  NAVAL  LEGISLATION  OF  1917 

The  agitation  for  preparedness  in  1916  forced  a  great  increase 
of  the  navy.  Congress  adopted  a  three-year  building  program 
by  which  about  one  hundred  and  sixty  vessels  of  various  sorts 
were  to  be  built,  of  which  sixty-seven  were  begun  in  the  first 
year.  The  amount  appropriated  for  the  first  year's  program,  not 
including  the  amount  necessary  for  armament,  was  nearly 
$170,000,000.  With  the  entrance  of  the  United  States  into 
the  war  even  this  program  was  exceeded,  and  because  of  vastly 
increased  cost  of  construction  the  amount  appropriated  was 
enormously  increased. 

The  entrance  of  the  United  States  into  the  European  War 
made  it  necessary  to  provide  for  further  increases  in  the  military 
and  naval  forces  and  to  extend  the  already  wide  powers  of  the 
president  in  military  affairs.  On  April  5,  1917,  Secretary  Baker 
laid  before  Congress  a  bill  prepared  by  the  General  Staff,  which 
had  the  approval  of  the  president.  By  this  the  regular  army 
was  to  be  recruited  to  its  full  strength,  the  National  Guard  was 
also  to  be  brought  to  full  war  strength  and  mustered  into  the 
federal  service.  Two  increments  of  500,000  each  were  to  be 
obtained  by  a  selective  draft.  In  all,  the  administration  called 
for  about  1,727,000  men. 

The  bill  met  with  opposition  in  the  House.  The  old  idea  of 
a  volunteer  force  was  strongly  held.  Speaker  Clark  asserted 
that  "  conscript  "  and  "  convict "  meant  the  same  to  the  people. 
The  chairman  of  the  Committee  on  Military  Affairs  would  not 


THE  WAR  PQWERS  OF  CONGRESS  431 

j  accept  the  bill,  and  it  finally  was  carried  through  the  House,  in 
spite  of  his  opposition  and  that  of  Speaker  Clark  and  Claude 
Kitchin,  the  floor  leader  of  the  majority,  by  Julius  Kahn,  a 
German  by  birth.  In  the  administration  bill  the  ages  of  liability 
for  draft  were  nineteen  to  twenty-five,  but  the  House  insisted  on 
raising  the  ages  to  twenty-one  and  forty. 

In  the  Senate,  Senator  Chamberlain,  chairman  of  the  Com-  changes  in 
mittee  on  Military  Affairs,  vigorously  supported  the  administra-  t 
tion's  policy.  Several  changes,  however,  were  made.  An 
amendment  was  inserted  authorizing  the  president  to  accept  a 
volunteer  force  of  not  less  than  one  division  nor  greater  than 
four  divisions,  to  satisfy  the  friends  of  President  Roosevelt,  who 
desired  to  raise  a  force  similar  to  the  "  Rough  Riders  "  of  the 
Spanish-American  War.  The  age  for  the  draft  differed  alike 
from  the  administration  measure  and  the  House  bill,  and  was 
fixed  at  twenty-one  to  twenty-seven.  In  conference  the  age  was 
finally  compromised  at  twenty-one  to  thirty  inclusive,  and  upon 
signing  the  bill  the  president  let  it  be  known  that  he  could  not 
take  advantage  of  the  permission  to  utilize  or  raise  volunteers. 

The  military  force  thus  provided  was   of  three  kinds,   the 
regular^army,  the  National, Guard,  the  new  National-  Army. 

On  the  first  day  of  April,    1917,  the  number  of  the  regular  The  growth 
army  stood  at  121,000,  raised  entirely  by  voluntary  enlistment.  and^Sa 
On  the  last  day  of   December,    1917,   it  was   475,000.    This  Guard 
increase  had  been  obtained  solely  by  voluntary  enlfstment.    The 
National  Guard  had  76,713  enlisted  men  actually  in  the  federal 
service  on  April   I,   1917.    Orders  were  issued  to  recruit  the 
Guard  to  full  war  strength,  and  on  August  5   it  was  drafted 
into  federal  service.    On  December  31,  1917,  there  were  over 
400,000  men  actually  in  service  in  the  National  Guard.1 

The  act  of  May,  1917,  directed  that  men  between  the  ages  The  Draft 
of  twenty-one  and  thirty  should  be  registered  according  to 
regulations  made  by  the  president.  The  president  was  further- 
more authorized  to  utilize  the  services  of  all  departments  and 
officers  of  the  United  States  or  of  the  several  states,  and  severe 
punishments  were  provided  for  neglect  or  failure  to  perform 

1  See  'Secretary  Baker's  statement  to  the   Senate  Committee  on   Military 
Affairs.    See  also  American  Year  Book  (1917)*  P-  289- 


432    THE  GOVERNMENT  OF  THE  UNITED  STATES 

any  duty  assigned  by  the  president  or  his  agents.  The  president 
fixed  June  5  as  registration  day  and  directed  that  all  registrants 
should  appear  at  the  regular  polling  places  of  the  district  in  which 
they  resided  and  fill  out  the  necessary  papers.  In  all  9,780,685 
men  were  registered,  this  number  being  only  about  4  per  cent  less 
than  the  number  estimated  by  the  Census  Bureau.  On  July  1 3 
the  president  issued  an  order  drafting  678,000  men  selected 
from  those  who  had  registered.  Boards  were  appointed  in  every 
state,  for  each  county,  and  for  every  city  over  30,000,  or  in 
larger  cities  for  each  section  over  30,000,  to  hear  and  determine 
the  questions  of  exemption  according  to  the  provisions  of  the 
act  and  the  regulations  made  by  the  president.  Boards  of 
Review  were  also  established  in  the  several  federal  judicial 
districts  whose  decision  was  final  unless  revised  by  the  president. 

The  act  itself  exempted  the  executive,  legislative,  and  judicial 
officers  of  the  United  States  and  of  the  several  states,  ministers 
of  religion,  students  in  theological  schools,  persons  already  in 
the  military  or  naval  service  of  the  United  States,  and  members 
of  recognized  religious  sects  whose  creed  forbade  its  members 
to  engage  in  war.  There  .were  also  numerous  classes  which  the 
president  -might  exclude  or  discharge  from  .the  draft.  These 
included  county  and  municipal  officers,  certain  government 
clerks,  "  persons  engaged  in  industries,  including  agriculture, 
found  to  be  necessary  to  the  maintenance  of  the  Military 
Establishment,"  and  persons  having  dependents.  For  these 
classes  the  president  might  make  rules  which  would  exempt 
them  entirely  or  accept  them  for  partial  service. 

Registration  passed  off  quietly  with  little  disturbance  or 
resistance  to  the  law.  During  the  summer  the  various  exemption 
boards  examined  the  men  on  the  lists,  accepting  or  rejecting 
them  according  to  the  regulations  made  by  the  president.  In 
September  the  first  contingents  were  sent  to  the  several  canton- 
ments, sixteen  of  which  had  been  constructed  for  their  training. 
Thus  by  December  31,  1917,  the  National  Army  had  been 
raised  to  a  strength  of  480,000  men  with  a  reserve  of  84,000 
officers  and  72,000  enlisted  men.1 

1  Secretary  Baker's  figures  given  in  a  statement  before  the  Senate  Committee 
on  Military  Affairs;  American  Year  Book  (1917),  p.  289. 


THE  WAR  POWERS  OF  CONGRESS  433 

Considerable  criticism  was  made  concerning  the  number  of  criticism  of 
men  raised,  their  equipment  and  care.  But  taking  all  things 
into  consideration  the  raising  and  equipping  of  an  army  of  over 
one  and  a  half  million  men  was  accomplished  with  as  little  dis- 
turbance and  as  few  errors  as  could  reasonably  be  expected. 
Certainly  the  achievement  was  far  more  successful  than  was 
the  enlistment  of  a  force  about  a  sixth  as  large  during  the 
Spanish- American  War.  The  death  rate  of  the  army,  moreover, 
was  only  7.5  as  compared  with  20.14  m  1898.  It  must  be 
freely  admitted,  however,  that  mistakes  were  made,  and  that  a 
lack  of  coordination  was  disclosed  which  made  necessary  some 
rather  drastic  reorganization  in  the  War  Department.  Moreover, 
the  administration  asked  for  and  finally  obtained  legislation  which 
enabled  it  to  transfer, the  functions  given  to  various  departments 
and  bureaus  by  law,  and  to  utilize  any  department  or  agency  of 
the  government  as  necessity  required.1  The  most  fundamental 
criticism,  however,  was  that  the  administration  did  not  make 
adequate  preparation  in  the  way  of  ordnance  or  supplies,  and  that 
even  the  large  forces  raised  were  far  too  small  for  the  contri- 
bution expected  from  the  United  States.  In  answering  these 
criticisms  Secretary  Baker  maintained  that  the  men  would  be 
properly  equipped  and  trained  as  fast  as  they  could  be  trans- 
ported to  the  fighting  front ; 2  and  that  the  shortage  of  ships  and 
the  necessities  of  the  Allies  for  food  and  other  supplies  limited 
the  size  of  the  army  which  could  be  sent.  Early  in  July,  1918, 
it  was  announced  that  over  a  million  men  had  already  been 
transported,  and  on  November  I,  1918,  the  expeditionary  force 
numbered  nearly  two  millions. 

When  not  in  actual  service  the  militia  receives  the  same 
training  as  the  regular  army,  although  much  curtailed.  When 
called  into  active  service,  the  articles  of  war  apply  to  the  militia, 
volunteers,  and  regular  troops  alike.  Discipline  is  then  main- 
tained, as  in  the  regular  army,  by  means  of  courts-martial.3 

1  See  Chapter  X. 

"  2  Arms  of  the  most  modern  and  effective  kind  ...  are  available  for  every 
soldier  who  can  be  gotten  to  France  in  the  year  1918." 

8  See  Military  Laws  of  the  United  States,  pp.  962,  963 ;  W.  W.  Willoughby, 
The  Constitutional  Law  of  the  United  States,  Vol.  II,  p.  1 190. 


Military  law 
in  England 


Military  law 
in  the  United 
States 


Double  obli- 
gations of  a 
member  of 
the  army  or 
navy 


434    THE  GOVERNMENT  OF  THE  UNITED  STATES 

MILITARY  LAW 

Regulations  applicable  to  the  army  in  time  of  peace  did  not 
come  into  practice  in  England  until  1689  with  the  passage  of 
the  Mutiny  Act.  Before  that  date  military  regulations  or  articles 
of  war  were  issued  either  by  the  Crown  directly  or  by  a  com- 
mander acting  under  some  commission.  These  articles,  however, 
remained  in  force  only  during  the  active  service  of  the  troops 
for  which  they  were  issued,  and  had  no  binding  force  in  time 
of  peace.  Gradually,  however,  these  rules  assumed  a  form  more 
or  less  fixed  and  f  were  consolidated  after  1689  in  the  Mutiny 
Act.  In  the  United  States,  Congress  issued,  in  1/75,  a  series 
of  rules  modeled  upon  the  English  act,  which  with  some  revision 
was  continued  until  a  new  series  was  issued,  September  30,  1776. 
These  were  adapted  to  new  conditions  in  1789,  and  thoroughly 
revised  in  1806;  from  that  date  they  have  continued  with 
many  minor  modifications. 

Upon  enlistment  in  the  regular  army  the  soldier  becomes 
subject  to  the  military  regulations  both  in  time  of  war  and  in 
peace.  This  is  but  an  additional  new  obligation  he  assumes  and 
does  not  free  him  from  the  obligations  of  civil  and  criminal  law. 
He  is  under  the  necessity  of  obeying  both  and  may  be  tried  by 
and  punished  according  to  the  procedure  of  both,  should  he 
commit  an  offense  punishable  alike  by  the  military^  and  ,dvil 
codes.  This  position  may  conceivably  put  him  in  an  unfortunate 
dilemma ;  for  if  he  fails  to  obey  the  commands  of  his  superior 
officers,  he  may  be  severely  punished  under  the  military  code ; 
and  if  he  does  obey,  in  so  doing  he  may  transgress  a  civil  law 
and  be  held  responsible  before  the  courts.  The  dilemma  may  be 
unfortunate,  but,  as  Justice  Stephen  said,  it  was  the  "  inevitable 
consequence  of  the  double  necessity  of  preserving  on  the  one 
hand  _£he  supremacy^  pf  {he  law,  and  on  Jjae-etfer-^be-xijscipline 
of  ths^army."  The  responsibility,  moreover,  extends  to  all  superi- 
ors who  in  any  way  are-concerned  with  the  giving  of  an  order 
contrary  to  the  law  of  the  land.  An  order,  without  -the  authority 
of  law,  even  if  given  by  the  president  of  the  United  States,  acting 
as  commander  in  chief,  will  not  relieve  the  officer  or  the  president 
from  the  consequences  of  the  responsibility  for  the  action.  This 
doctrine  was  applied  in  1804  by  Marshall  when  he  said  : 


THE  WAR  POWERS  OF  CONGRESS  435 


right,  they  might  yet  excuse  from  damages.  .  .  .  That  implicit  obedi-  mands  of  a 

J  f  superior  do 

ence  which  military  men  usually  pay  to  the  orders  ot  their  superiors,   not  justify 

which  indeed  is   indispensably  necessary  to    every   military    system,  lllegalactl<>ns 

appeared  to  me  strongly  to  imply  the  principle  that  those  orders,  if 

not  to  perform  a  prohibited  act,  ought  to  justify  the  person  whose 

general  duty  it  is  to  obey  them,  and  who  is  placed  by  the  laws  of  his 

country  in  a  situation  which  in  general  requires  that  he  should  obey 

them.    I  was  strongly  inclined  to  think  that  when,  in  consequence  of 

orders  from   the   legislative  authority,  a  vessel   is  seized  with  pure 

intention,  the  claim  of  the  injured  party  for  damages  would  be  against 

the  government  from  which  the  orders  proceeded.  .  .  .  But  I  have 

been  convinced  that  I  was  mistaken  and  I  have  receded  from  this  first 

opinion.    I  acquiesce  in  that  of  my  brethren,  which  is,  that  the  instruc- 

tion^carmotj changgjthe  nature  of  the  transaction,  or  legalize  Sit^act 

which,  without  those  insfructioTisTw^uTTTiave  been  a  plain  trespass.1 

The  application    of  military  law  is,   except  in  the  case   of  courts- 

.        ,       ,         ,      .  -  -1-T-i  .-         martial 

emergency,  in  the  hands  of  courts-martial.  These  are  executive 
boards  appointed  either  directly  by  the  president  or  by  command- 
ers acting  under  his  authority.  Commissioned  officers  are  triable 
only  by  general  courts-martial,  which  must  contain  from  five,  at 
least,  to  fifteen  officers,  who  if  possible  shall  not  be  of  inferior 
rank  to  the  accused.  Enlisted  men  may  be  tried  for  certain 
offenses  by  summary  courts-martial  composed  of  one  officer, 
while  courts  of  three  officers  are  provided  for  garrisons  in  cases 
not  capital.  There  is  no  jury  employed,  either  grand  for  indict- 
ment or  petit  for  trial.  The  courts-martial  are  not  technically 
judicial  tribunals  but  executive  boards.  The  findings  of  the  courts- 
martial  are  submitted  to  the  authority  which  appointed  them, 
who  is  known  as  the  reviewing  officer.  While  he  may  not 
increase  the  punishment,  he  may  diminish  it,  or,  if  dissatisfied, 
refer  the  case  for  a  second  consideration. 

The  constitutionality  of  the  sentence  of  courts-martial  was  thus 
sustained  in  1858  : 

.  .  .  With  the  sentences  of  courts-martial  which  have  been  convened 
regularly,  and  have  proceeded  legally,  and  by  which  punishments  are 
directed,  not  forbidden  by  law,  or  which  are  according  to  the  customs 

1  Little  v.  Barreme,  2  Cranch,  170,  178,  179. 


436    THE  GOVERNMENT  OF  THE  UNITED  STATES 

constitution-  of  the  sea,  civil  courts  have  nothing  to  do,  nor  are  they  in  any  wise 
sentence^of  alterable  by  them.  If  it  were  otherwise,  civil  courts  would  virtually 
administer  the  rules  and  articles  of  war,  irrespective  of  those  to  whom 
that  duty  and  obligation  has  been  confided  by  the  laws  of  the  United 
States,  from  whose  decisions  no  appeal  or  jurisdiction  of  any  kind  has 
been  given  to  the  civil  magistrate  or  civil  courts.  But  we  repeat,  if  a  court- 
martial  has  no  jurisdiction  over  the  subject-matter  of  the  charge  it  has  been 
convened  to  try,  or  shall  inflict  a  punishment  forbidden  by  the  law,  though 
its  sentence  shall  be  approved  by  the  officers  having  a  revisory  power 
of  it,  civil  courts  may,  on  an  action  by  a  party  aggrieved  by  it,  inquire 
into  the  want  of  the  court's  jurisdiction,  and  give  him  redress.1 

But,  as  has  been  said,  punishment  by  jijcourt-martial  does  not 
serye^as^a  bar  fo  punishment  by  a  civil  or  crirpmaj^rniirt-.  This 
was  affirmed  in  1878  when  the  court  said: 

Punishment          In  thus  holding,  we  do  not  call  in  question  the  correctness  of  the 
marttanio      'general  doctrine  asserted  by  the  Supreme  Court  of  Tennessee,  that 
bar  to  subse-    the  same  act  may,  in  some  instances,  be  an  offense  against  two  govern- 
menttJy1civii  ments,  and  that  the  transgressor  may  be  held  liable  to  punishment  by 
or  criminal      both  when  the  punishment  is  of  such  a  character  that  it  can  be  twice 
inflicted,  or  by  either  of  the  two  governments  if  the  punishment,  from 
its  nature,  can  be  only  once  suffered.    It  may  well  be  that  the  satisfac- 
tion which  the  transgressor  makes  for  the  violated  law  of  the  United 
States  is  no  atonement  for  the  violated  law  of  Tennessee.2 

Actual  To  avoid  such  conflicts  the  articles  of  war  direct  that  when 

any  officer  or  soldier  is  accused  of  capital  crime  or  an  offense 
against  the  person  or  property  of  any  United  States  citizen,  the 
commanding  officer,  except  in  time  of  war,  shall  turn  the 
offender  over  to  the  civil  authorities.  This  article  includes 
offenses  against  municipal  orfiinjmrps,  but  applies  only  to  .crimi- 
nal charges.  But  the  article  does  not  apply  to  soI3iers  on  leave, 
who  may  be  arrested  like  ordinary  citizens.  If  the  offense  be 
one  committed  against  both  authorities,  the  authority  which  first 
assumes  jurisdiction  over  the  offender  retains  him  until  the  sen- 
tence is  completed.  But  the  completion  of  the  sentence  does  not 
serve  as  a  bar  to  subsequent  punishment,  although  it  is  probably 
taken  into  consideration  in  the  second  trial,  if  one  be  required. 

1  Dynes  v.  Hoover,  20  Howard,  65,  82,  83. 

2  Coleman  v.  Tennessee,  97  U.S.  509,  518. 


THE  WAR  POWERS  OF  CONGRESS  437 

THE  POWER  TO  DECLARE  WAR 

This  power  is  vested  in  Congress,  and  in  the  debates  in  the  war,  when 
convention  of  1787  it  was  suggested  that  Congress  should  also 
receive  the  power  to  make  peace  ;  but  inasmuch  as  peace  is 
usually  the  result  of  a  treaty,  and  the  power  to  make  treaties  tion 
is  vested  in  the  president  and  the  Senate,  the  proposed  addition 
was  omitted.  The  usual  method  of  declaring  war  is  by  a  reso- 
lution passed  by  both  Houses  and  signed  by  the  president.  But 
it  has  sometimes  happened,  as  in  the  Mexican  War,  that  the  Exceptions 
president,  utilizing  his  power  as  commander  in  chief,  could  prac- 
tically force  a  conflict.  Again,  in  1913  and  1914,  although  Presi- 
dent Wilson  was  authorized  to  utilize  the  forces  of  the  United 
States  against  Mexico,  no  war  was  declared,  and  technically 
peace  existed  between  the  two  countries.  Again,  in  the  case  of  . 
the  war  with  Spain,  the  Supreme  Court  held  that  war  existed 
from  the  breaking  off  of  diplomatic  relations  because  Spain 
interpreted  our  demand  for  intervention  as  declaration  of  war, 
although  the  actual  resolution  of  Congress  was  passed  at  a  later 
date.1  And  still  again,  in  the  Civil  War  no  declaration  was  ever 
made,  but  it  was  held  by  the  court  that  war  existed  from  the 
date  of  the  proclamation  of  the  intended  blockade.2  From  these 
examples  it  is  easy  to  see  that  the  mere  power  to  declare  war 
is  not  of  supreme  importance. 

Of  greater  importance  is  the  actual  power  which   Congress  power  of 
exercises  in  legislation,  once  war  is  declared.    Of  so  much  impor- 


tance  is  this  power  that  no  president  would  dare  engage  in  any  JJSdwar  by- 
policy  which  might  result  in  hostilities  unless  he  felt  himself  legislation 
supported  either  by  Congress  or  by  the  people.    Actually  the 
president  is  in  close  touch  with  the  congressional  leaders,  and 
the    formal    declaration   of  war   is   more   in  the  nature   of   an 
advertisement  of  a  policy  already  agreed  upon  than  a  new  and 
momentous  step. 

As  has  been  shown,  the  president  as  commander  in  chief  The  conduct 
conducts  the  war  ecretary  of  War  and  the  General 

Staff.    Neverthele  I  has  an  active  and"  important  part 

1  S.  354. 

2  .  ,'  /       'rotector,  1  2  Wall.  700. 


438    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Congress  may 
increase  the 
army,  levy 
new  taxes, 
and  issue 
bonds 


The  president 
directs  the 
actual  opera- 
tions but 
may  be 
helped  or 
hindered  by 
congressional 
action 


Privateering 
abolished 


in  its  operations  and  a  voice  in  its  conduct.  Even  before  a 
declaration  of  war  a  resolution  is  often  sought  by  the  president 
either  to  carry  out  some  policy  or  to  utilize  the  forces  of  tfre 
United  States  for  some  purpose  which,  although  within  his  legal 
power,  demands  congressional  or  popular  support.  Since  these 
forces  have  generally  been  inadequate  hitherto,  Congress  has 
passed  resolutions  authorizing  the  president  to  call  for  volun- 
teers. In  the  financial  field  Congress  is  most  active.  Here  all 
the  powers  of  the  national  government  in  the  way  of  taxation, 
borrowing  money,  and  appropriations  are  utilized.  The  first  step 
in  a  serious  crisis  is  generally  a  resolution  to  authorize  the  Sec- 
retary of  the  Treasury  to  make  a  loan  through  selling  bonds. 
Additional  revenue  is  obtained  by  increasing  the  internal  revenue 
taxes  and  sometimes  by  a  general  revision  of  the  tariff  duties. 
From  time  to  time  Congress  may  authorize  an  increase  in  the 
size  of  the  regular  army  or  call  for  volunteers.  The  Senate 
through  its  power  to  confirm  or  reject  all  presidential  appointees 
exercises  large  influence  in  the  choice  of  officers.  The  actual 
designation  of  the  commanding  officers  and  the  direction  of  the 
campaigns  is  in  the  hands  of  the  president,  guided  by  the 
opinions  of  his  secretaries  and  the  General  Staff.  Nevertheless, 
through  the  refusal  of  the  necessary  legislation  the  president 
may  be  compelled  to  abandon  the  plans  .  which  he  and  his 
advisers  have  made. 

Congress  is  given  power  to  issue  letters  of  maj3}«e-a**€teprisal, 
in  other  words  to  athize_m^ 


A  war  is  ter- 
minated by 
a  treaty 


This  method  of  warfare,  however,  was  abolished  by  the  declara- 
tion of  Paris  in  1856.  Although  the  United  States  has  never 
assented  to  this  treaty,  yet  she  has  consistently  governed  her  con- 
duct by  its  terms  in  all  the  wars  she  has  been  engaged  in  since 
that  date.  Congress  also  makes  regulations  for  the  conduct  of 
the  army  and  navy  in  the  matter  of  capture  and  prize. 

A  war  is  finally  brought  to  an  end  by  a  treaty,  negotiated 
according  to  the  advice  and  plans  of  the  president  and  ratified 
by  the  Senate.1  Very  often,  as  in  the  case  of  the  war  with 
Spain,  the  treaty  provides  for  the  purchase  of  certain  territory 
or  the  payment  of  certain  sums  either  agreed  upon  or  to  be 

1  See  p.  200. 


THE  WAR  POWERS  OF  CONGRESS  439 

settled  at  a  future  time.   The  appropriation  of  these  amounts  gives  House  of  Rep- 
trie  House  of  Representatives  an  opportunity  to  question   the 
treaty.    According  to  the  rules  of  international  law,  a  state  must 
appropriate  the  sums  agreed  upon  by  a  legally  ratified  treaty,  for  by  treaty 
This  rule  was  insisted  upon  by  Jackson  when  he  had  Congress 
pass  retaliatory  measures  because  the  French  Chambers  neglected 
to  make  the  appropriations  required  by  a  treaty.    In  practice  the 
House  of  Representatives  has  always  followed  the  course  required 
by  international  law,  although  several  times  questioning  the  treaty 
and  threatening  to  refuse  to  make  the  necessary  appropriations. 

In  statutes  raising  the  army,  either  regular  or  volunteer,  not  Pensions 
merely  is  the  pay  provided  but  sometimes  the  terms  are  stated 
upon  which  pensions  will  be  granted.    The  actual  appropriations 
for  pensions  are  not  made  until  needed,  and  then  both  general 
and  special  pension  acts  are  passed.1 

In  19 1 7  the  United  States  offered  to  its  forces  insurance  and  compensation 

r  r  ,  i    •    •  T     •      i  i    and  insurance 

a  scheme  of  compensation  for  wounds  and  injury.  It  is  hoped 
that  by  the  utilization  of  this  provision  the  scandals  and  extrava- 
gances which  characterized  the  administration  of  the  former 
pension  system  will  be  avoided. 

MILITARY  GOVERNMENT  IN  TIME  OF  PEACE 

The  president,  acting  as  commander  in  chief  may  establish  Military  gov- 
military  government  in  both  foreign  and  domestic  territory  during  timTof  peace 
a  war.2  Military  government  may  also  exist  in  time  of  peace, 
But  this  government  derives  its  force  not  from  the  orders  of  the 
president  but  from  the  acts  of  Congress.  Until  Congress  acts, 
however,  the  president  may  C9ntinue  the  existing  form  of  govern- 
ment established  during  a  war,  subject  always  to  the  power  of 
Congress  to  alter  or  abolish  it.  It  may  seem  wise  for  Congress 
to  delay  action  and  thus  tacitly  to  approve  the  system  established 
by  the  president,  but  in  this  case  the  president  is  not  acting  as 
commander  in  chief  but  as  chief  executive.  Such  was  the  case 
after  the  Spanish  war  with  regard  to  the  Philippines.  These 
islands  were  acquired  in  1899,  and  by  Congress  the  government 

1  See  pp.  260-261. 

2  See  pp.  193-194- 


440    THE  GOVERNMENT  OF  THE  UNITED  STATES 

and  control  was  vested  in  the  president  as  chief  executive.  Thus 
for  three  years  the  islands  were  under  the  control  of  various 
commissions  appointed  by  and  responsible  to  the  president.  In 
1902,  however,  Congress  passed  the  Philippine  Act  establishing 
a  territorial  government,  in  which  the  natives  had  some  little 
voice  in  the  affairs. 

In  like  manner,  although  the  president  may  establish  military 
governments  in  hostile  domestic  territory  under  his  power  as 
commander  in  chief,  when  peace  is  restored,  although  these  gov- 
ernments may  be  continued,  the  power  to  alter  or  abolish  them 
is  vested  in  Congress.  In  Texas  v.  White  l  the  court  in  passing 
upon  the  reconstruction  policy  said  : 

Texas  v.  white  The  power  exercised  by  the  president  was  supposed,  doubtless,  to  be 
derived  from  his  constitutional  functions,  as  commander  in  chief ;  and, 
as  long  as  the  war  continued,  it  cannot  be  denied  that  he  might  institute 
temporary  governments  within  insurgent  districts,  occupied  by  the  na- 
tional forces,  or  take  measures  in  any  state  for  the  restoration  of  state 
governments  faithful  to  the  Union,  employing,  however,  in  such  efforts, 
only  such  means  and  agents  as  were  authorized  by  constitutional  laws. 
But  the  power  to  carry  into  effect  the  clause  of  guaranty  is  primarily 
a  legislative  power,  and  resides  in  Congress.  Under  the  4th  article  of 
the  Constitution,  it  rests  with  Congress  to  decide  what  government  is 
the  established  one  in  a  state. 


MARTIAL  LAW 


Martial  law 
a  form  of 
the  police 
power  of  the 
state 


Military  law  has  been  discussed.  Yet  in  another  way  the  mili 
tary  forces  of  the  United  States  are  sometimes  utilized.  It  is 
often  popularly  said  that  martial  law  is  proclaimed  in  districts 
where  there  are  riots  or  insurrections.  Under  the  guarantees  of 
our  government  such  a  thing  as  the  substitution  of  military  rule 
for  civil  law  is  impossible  without  ipso  facto  creating  a  state  of 
war.  What  then  is  the  meaning  of  the  popular  phrase  "  martial 
law  "  ?  As  Professor  Willoughby  shows,2  it  is  but  a  form  of  the 
police  power  of  the  state.  In  its  very  origin,  its  operations,  and 
its  consequences  it  is  but  the  utilization  of  the  military  forces  by 
the  civil  authorities.  Civil  rights  are  not  destroyed,  new  offenses 

1  7  Wall.  700,  730. 

2  The  Constitutional  Law  of  the  United  States,  Vol.  II,  pp.  12291!. 


THE  WAR  POWERS  OF  CONGRESS  441 

are  not  created,  military  government  is  not  established,  by  a 
proclamation  of  martial  law.  All  that  has  happened  is  that  the 
civil  authorities,  being  unable  to  enforce  the  laws  with  the  ordi- 
nary civil  officers,  have  summoned  the  military  forces  to  assist 
them  in  enforcing  not  irresponsible  military  rule  but  the  civil 
laws  —  not  to  wage  war  but  to  keep  the  peace.  The  extent  to 
which  force  may  be  used  and  civil  rights  interfered  with  in  order 
to  keep  the  peace  is  a  very  delicate  question.  No  fixed  rules 
can  be  laid  down,  but  each  individual  case  must  be  justified  on 
its  merits,  not  at  the  time  of  the  emergency  but  by  a  civil  court 
[at  some  later  time.  It  is  this  possibility  of  subsequent  judicial 
review  and  trial  by  the  civil  courts  that  most  markedly  distin- 
guishes so-called  martial  law  from  military  rule.  In  1908,  how- 
ever, in  the  case  of  Moyer  v.  Peabody^  the  court,  in  an  opinion 
by  Justice  Holmes,  seemed  to  grant  to  officers  discretionary  rights 
not  reviewable  by  the  courts.  After  quoting  the  provisions  of  the 
constitution  of  Colorado  which  gave  the  governor  the  right  to  use 
the  military  forces  of  the  state  to  suppress  insurrections,  he  said  : 

...  That  means  that  he  shall  make  the  ordinary  use  of  the  soldiers  justice 
to  that  end  ;  that  he  may  kill  persons  who  resist,  and,  of  course,  that 
he  may  use  the  milder  measure  of  seizing  the  bodies  of  those  whom  he 
considers  to  stand  in  the  way  of  restoring  peace.  Such  arrests  are  not 
necessarily  for  punishment,  but  are  by  the  way  of  precaution  to  prevent 
the  exercise  of  hostile  power.  So  long  as  such  arrests  are  made  in  good 
faith  and  in  honest  belief  that  they  are  needed  in  order  to  head  the 
insurrection  off,  the  governor  is  the  final  judge  and  cannot  be  subjected 
to  an  action  after  he  is  out  of  office  on  the  ground  that  he  had  no 
reasonable  ground  for  his  belief.  .  .  . 

No  doubt  there  are  cases  where  the  expert  on  the  spot  may  be  called  Although  an 
upon  to  justify  his  conduct  later  in  court,  notwithstanding  the  fact  he 


had  sole  command  at  the  time  and  acted  to  the  best  of  his  knowledge,   to  justify  his 
That  is  the  position  of  the  captain  of  a  ship.     But,  even  in  that  case  great  weight' 


great  weight  is  given  to  his  determination,  and  the  matter  is  to  be 

judged  on  the  facts  as  they  appeared  then,  not  merely  in  the  light  of  nation  of  the 

the  event.  .  .  .    When  it  comes  to  a  decision  by  the  head  of  the  state  fi 

upon  a  matter  involving  its  life,  the  ordinary  rights  of  individuals  must 

yield  to  what  he  deems  the  necessities  of  the  moment.    Public  danger 

warrants  the  substitution  of  executive  process  for  judicial  process.  .  .  . 

1  212  U.  S.  78,  84,  85,  86. 


442    THE  GOVERNMENT  OF  THE  UNITED  STATES 


can  martial 


conflict? 


Opinion  of  the 

martianaw 
could  only  be 
used  in  case 
©factual 

reafinvasfon 


This  was  admitted  with  regard  to  killing  men  in  the  actual  clash  of 
arms,  and  we  think  it  obvious,  although  it  was  disputed,  that  the  same 
is  true  of  temporary  detention  to  prevent  apprehended  harm.  As  no 
one  would  deny  that  there  was  immunity  for  ordering  a  company  to 
fire  upon  a  mob  in  insurrection,  and  that  a  state  law  authorizing  the 
governor  to  deprive  citizens  of  life  under  such  circumstances  as  was 
consistent  with  the  Fourteenth  Amendment,  we  are  of  the  opinion  that 
the  same  is  true  authorizing  by  implication  what  was  done  in  this  case. 

THE  USE  OF  MARTIAL  LAW 

As  has  been  said,  when  insurrection  becomes  widespread  and 
serious,  it  may  change  its  character  and  become  war.  When  war 
begins,  the  rebel  becomes  an  enemy  liable  not  to  civil  or  martial 
law  but  to  the  rules  of  war.  The  president  or  the  executive  then 
may  exercise  any  or  all  of  the  powers  of  the  commander  in  chief 
in  time  of  war.  But  in  time  of  civil  war  certain  districts  may 
remain  loyal,  exposed  to  the  dangers  of  invasion  or  rebellion, 
but  actually  in  a  state  of  peace.  Can  military  rule  or  martial 
law  be  applied  by  the  president  in  such  regions  which  lie  outside 
the  actual  area  of  the  conflict?  Such  was  attempted  in  the 
Civil  War,  and  in  the  case  of  Ex  parte  Milligan  1  the  court  laid 
down  the  following  principles  : 

It  will  be  borne  in  mind  that  this  is  not  a  question  of  the  power  to 
proclaim  maftial  law,  where  war  exists  in  a  community  and  the  courts 

and  civil  authorities  are  overthrown.     Nor  is  it  a  question  what  rule  a> 

... 
military  commander  at  the  head  of  his  army  can  impose  on  states  in 

rebe1lion  to  cripple  their  resources  and  quell  the  insurrection.  The 
jurisdiction  claimed  is  much  more  extensive.  The  necessities  of  the 
service,  during  the  late  Rebellion,  required  that  the  loyal  states  should 
be  placed  within  the  limits  of  certain  military  districts  and  commanders 
appointed  in  them  ;  and,  it  is  urged  that  this,  in  a  military  sense,  con- 
stituted them  the  theater  of  military  operations  ;  and,  as  in  this  case, 
Indiana  had  been  and  was  threatened  by  invasion  by  the  enemy,  the 
occasion  was  furnished  to  establish  martial  law.  The  conclusion  does 
not  follow  from  the  premises.  If  armies  were  collected  in  Indiana, 
they  were  to  be  employed  in  another  locality,  where  the  laws  were 
obstructed  and  the  national  authority  disputed.  On  her  soil  there 
was  no  hostile  foot;  if  once  invaded  that  invasion  was  at  an  end, 


1  4  Wall.  2,  126,  127. 


* 


THE  WAR  POWERS  OF  CONGRESS  443 

and  with  it  all  pretext  for  martial  law.  Martial  law  cannot  arise 
(from  a  threatened  invasion.  The  necessity  must  be  actual  and  present, 
the  invasion  real,  such  as  effectually  closes  the  courts  and  deposes  the 
(civil  administration.  .  .  . 

It  follows  from  what  has  been  said  on  this  subject,  that  there  are  when  the 
occasions  where  martial  rule  can  be  properly  applied.     If,  in  foreign  actually 
invasion  or  civil  war,  the  courts  are  actually  closed,  and  it  is  impossible  closed  the 
to  administer  criminal  justice  according  to  law,  then,  on  the  theater  of 
active  military  operations,  where  war  really  prevails,  there  is  a  necessity 
llto  furnish  a  substitute  for  the  civil  authority  thus  overthrown,  to  pre- 
B  serve  the  safety  of  the  army  and  society  ;  and  as  no  power  is  left  but 
H  the  military,  it  is  allowed  to  govern  by  martial  rule  until  the  laws  can  have 
Btheir  free  course.  As  necessity  creates  the  rule,  so  it  limits  its  duration  ; 
•for,  if  this  government  is  continued  after  the  courts  are  reinstated,  it  is 
II  a  gross  usurpation  of  power.    Martial  rule  can  never  exist  where  the 
I  courts  are  open,  and  in  the  proper  and  unobstructed  exercise  of  their 
jurisdiction.    It  is  also  confined  to  the  locality  of  actual  war. 


In  commenting  upon  this  opinion  Professor  Willoughby l  very  criticism  of 
1  justly  takes   exception  to  the  words   "The  necessity  must  be  Jfthecourt 
•actual  and  present,  the  invasion  real,  such  as  effectually  closes 
the   courts  and   deposes   the   civil  administration."     To  forbid 
martial  law  where  the  courts    may  be  open   is  too  general  a 
prohibition.     Martial  law  may  be  necessary  in  order  that  the 
courts  may  remain  open.    It  is  true  that  the  necessity  for  martial 
law  must  be  actual,  but  this  necessity  cannot  be  determined  by 
a  general  rule. 

THE  SUSPENSION  OF  THE  WRIT  OF  HABEAS  CORPUS 

Martial  law  need  not  necessarily  involve  actual  armed  conflicts,  purpose  of  the 

fact  almost  as  effective  as  the   actual   presence   of   military  th^wriToV 

rce  is  the  power  of  the  executive  to  arrest  and  detain  those  habeas  corpus 

icted  of  encouraging  rebellion.  To  do  this  may  require 
lilitary  force,  but  often  such  arrests  may  be  made  by  civil  offi- 
cers. Under  ordinary  conditions '  the  prisoner  could  by  the  writ 
of  habeas  corpus  compel  the  authorities  to  show  legal  justifica- 
tion for  his  detention.  If  such  be  wanting  he  may  be  released 
once.  Such  a  proceeding  might  defeat  or  hamper  the  power 

1  The  Constitutional  Law  of  the  United  States,  Vol.  II,  p.  1251. 


444    THE  GOVERNMENT  OF  THE  UNITED  STATES 

of  the  executive  to  quell  the  disturbance.  Hence  the  first  step 
in  the  exercise  of  martial  law  is  to  suspend  the  operation  of 
this  writ.  . 

congress,  not       Before  the  Civil  War  it  was  held1  that  this  could  only  be 
accomplished  by  Congress,  but,  upon  the  advice  of  his  Attorney- 


suspend  the  General,  Lincoln  suspended  this  writ  both  within  and  without 
habeas  corpus  the  actual  area  of  hostilities.  This  drew  from  Taney,  the  Chief 
Justice,  a  protest2  which  perhaps  was  heeded,  for  Congress  in 
1863  passed  an  act  authorizing  such  suspension.  To-day  it  is 
generally  agreed  that  this  power  is  in  the  hands  of  Congress  and 
not  of  the  executive. 

Effect  of  the  It  should  be  remembered  that  the  suspension  of  the  writ  does 
thePwnrit°n  °f  n°t  create  new  offenses  nor  vest  the  officers  with  new  powers 
to  arrest.  It  merely  furnishes  them  with  a  legal  and  valid  excuse 
for  not  complying  with  its  summons.  They  are  legally  liable  to 
prosecution  for  any  illegal  act,  arrest,  or  imprisonment  they  have 
committed.  This  emphasizes  again  the  distinction  between  war, 
with  its  military  law,  and  a  condition  short  of  war  called  martial 
law.  In  war  the  executive  cannot  be  made  responsible  to  the 
court  ;  in  a  condition  where  martial  law  is  proclaimed  his  acts 
may  be  tested  in  those  tribunals.  Consequently,  when  the  writ 
of  habeas  corpus  is  suspended  it  is  usual  to  pass  an  act  indem- 
nifying the  executive  and  his  officers  for  any  illegal  acts  they 
may  have  performed.  Thus  the  very  necessity  of  this  act  of 
indemnity  is  in  itself  a  recognition  of  the  distinction  between 
war  and  martial  law. 

1  Ex  parte  Bollman,  4  C  ranch,  75. 

2  Ex  parte  Merryman,  in  J.  B.  Thayer,  Cases  on  Constitutional  Law,  Vol.  II, 
p.  2361. 


CHAPTER  XVIII 

FINANCE 
THE  TAXING  POWER  1 

First  among  the  legislative  grants  of  Congress  is  the  power  The  taxing 
to  levy  taxes.    The  Supreme  Court  says : 

This  power  ...  is  a  high  act  of  sovereignty,  to  be  performed  only 
[by  the  Legislature  upon  considerations  of  policy,  and  necessity  and 
(public  welfare.  In  the  distribution  of  the  powers  of  government  in  this 
country  into  three  departments,  the  power  of  taxation  falls  to  the 
(legislative.2 

So  essential  to  the  existence  of  a  sovereign  government  is  this  Expressly 
power  that  it  has  been  argued  that  the  specific  statement  was  fhenconstf- 
unnecessary.    But   with   the   experience   of    the    Confederation  tutl° 
fresh  in  mind,  the  framers  of  the  Constitution  did  not  think  it 
wise  to  leave  to  implication  this  power,  the  absence  of  which 
had  proved  one  of  the  greatest  defects  in  the  Articles  of  Con- 
federation.   Thus,  by  express  statement  Congress  is  given  the 
right  to  levy  taxes,  thereby  again   emphasizing  the  fact  that 
the  federal   government    is   one    of   enumerated    powers,    and 
that  apart  from  constitutional  grants  it  possesses  no  inherent 
sovereignty. 

It  has  sometimes  been  asserted  that  this  clause 'contains  two 
grants,  (i)  to  levy  taxes,  and  (2)  to  provide  for  the  defense 
and  general  welfare  of  the  United  States.  By  thus  interpreting 
the  clause  the  federal  government  would  cease  to  be  one  of 
limited  enumerated  powers  and  would  be  endowed  with  unlimited 
power  to  do  anything  for  the  general  welfare  of  the  United 
States.  Such  is  not  a  proper  reading  of  the  clause.  By  the 

1  The  Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  imposts, 
and  excises,  to  pay  the  debts  and  provide  for  the  common  defense  and  general 
welfare  of  the  United  States.  ...  —  The  Constitution  of  the  United  States, 

I  Article  I,  Sect,  viii,  clause  i. 

2  Meriwetherv.  Garrett,  102  U.  S.  472,  515. 

445 


Correct  in- 
terpretation 
of  the  grant 


Fundamental 
limitations 
from  the 
definition  of 
a  tax 


446    THE  GOVERNMENT  OF  THE  UNITED  STATES 

correct  interpretation,  the  words  "  to  pay  the  debts  and  provide 
for  the  common  defense  and  general  welfare  of  the  United 
States  "  limit  the  words  "to  lay  and  collect  taxes."  The  true 
meaning  of  the  clause  is  that  Congress  shall  have  power  to  lay 
taxes  in  order  to  pay  the  debts  and  in  order  to  provide  for  the 
general  welfare  of  the  United  States.  "In  this  sense,  Congress 
has  not  an  unlimited  power  of  taxation  ;  but  is  limited  to  specific 
objects, — the  payment  of  public  debts,  and  providing  for  the 
common  defense  and  general  welfare."  1 

In  addition  to  these  express  limitations  upon  the  purposes 
for  which  taxes  may  be  levied,  there  is  the  fundamental  limitation 
found  in  the  very  definition  of  a  tax.  It  has  been  stated  that 
taxes  are  burdens  or  charges  imposed  by  the  legislature  upon 
persons  or  property  to  raise  money  for  public  purposes.2  This 
statement  was  cited  with  approval  in  Loan  Association  v.  Topeka, 
where  the  court  said : 


Must  be 
levied  for  a 
public  purpose 


What  is  a 
public 
purpose  ? 


[The  tariff] 


, 


To  lay  with  one  hand  the  power  of  the  government  on  the  proper 
of  the  citizen,  and  with  the  other  to  bestow  it  upon  favored  individuals 
to  aid  private  enterprises  and  build  up  private  fortunes,  is  none  the 
less  robbery  because  it  is  done  with  the  forms  of  law  and  is  called 
taxation.  This  is  not  legislation.  It  is  a  decree  under  legislative  forms.8 

It  is  far  from  easy  to  find  decisions  as  to  what  constitutes  a 
public  interest  which  must  be  the  object  of  federal  taxation. 
The  court  has  more  frequently  been  called  to  pass  upon  the 
question  arising  out  of  state  legislation.  From  these  decisions 
it  seems  that  the  court  would  hold  that  a  tax  was  not  for  a 
public  purpose  where  the  benefit  to  the  public  was  merely 
incidental  to  private  gain.  Conversely,  the  court  has  upheld  the 
constitutionality  of  laws  levying  taxes  and  making  grants  defrayed 
out  of  the  treasury  to  private  individuals  where  the  public  was 
directly  benefited  and  the  individuals  incidentally.4  The  pro- 
tective tariff,  for  example,  may  be  upheld  on  the  ground  that, 
although  the  manufacturer  may  be  incidentally  benefited,  the 

1  J.  Story,  Commentaries  on  the  Constitution,  Vol.  I,  Sect.  908. 

2  T.  M.  Cooley,  Constitutional  Limitations  (6th  ed.),  p.  479. 
8  20  Wall.  655. 

4  E.  McClain,  Constitutional  Law,  pp.  124  et  seq. 


FINANCE  447 

[government  is  but  using  its  discretion  in  choosing  what  objects 
[it  may  tax.1  Again,  the  protective  tariff  is  justified  as  a  regulation 
|of  commerce. 

The    constitutionality   of    federal   bounties    has   never    been  [Bounties] 
[clearly  passed  upon  by  the  Supreme  Court,  but  if  sustained  at 
[all  they  would  probably  be  upheld  upon  the  grounds  stated  by 
the  court  in  1898  : 

Bounties  granted  by  the  government  are  never  pure  donations,  but 
are  allowed  either  in  consideration  of  services  rendered  or  to  be  rendered, 
objects  -of  public  interest  to  be  maintained,  production  or  manufacture 
to  be  stimulated,  or  moral  obligations  to  be  recognized.2 

The  Fifth  Amendment  adds  specific  limitations  to  the  methods  specific 
which  may  be  employed  in  federal  taxation.    "  Nor  shall  private 
property  be  taken  for  public  use  without  just  compensation," 
and  "  no  person  shall  be  ...  deprived  of  ...  property,  without 
due  process  of  law."    Although  both  these  restrictions  have  been  Tnediffer- 
invoked  against  certain  taxes  it  is  evident  that  one  refers  to  the  taking6?™-" 


taking  of  private  property  under  the  right  of  eminent  domain,  £2^  domain 


for  which  compensation  should  be  given  ;  while  the  other  is  a  and  by 
general   prohibition  against  the  taking  of   private  property  by 
unlawful   means.    Against   the   taking   of   private    property  by 
taxation  without  giving  a  monetary  compensation   there  is  no 
prohibition.    As  Cooley  says  : 

Where  taxation  takes  money  for  public  use,  the  tax  payer  receives, 
or  is  supposed  to  receive,  his  just  compensation  in  the  protection  which 
the  government  affords  to  life,  liberty,  and  property,  in  the  public  con- 
veniences which  it  provides,  and  in  the  increase  in  the  value  of  posses- 
sions which  comes  from  the  use  to  which  the  government  applies  the 
money  raised  by  the  tax  ;  and  those  benefits  amply  support  the 
individual  burden.3 

But  although  the  taking  of   money   by  taxes   without   giving 
direct   compensation    is   not    depriving   the    individual    of    his 

1  The  right  of  Congress  to  tax  within  its  delegated  power  being  unrestrained, 
except  as  limited  by  the  Constitution,  it  was  within  the  authority  conferred  on 
Congress  to  select  the  objects  on  which  an  excise  should  be  laid.  —  McCray  v. 
United  States,  195  U.S.  27,  61 

2  Allen  v.  Smith,  173  U.  S.  389,  402. 

8  T.  M.  Cooley,  Constitutional  Limitations  (6th  ed.),  p.  613. 


448    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Due  process 
of  law  as 
applied  to 
taxation 


Taxation 
must  be  for  a 
public  purpose 

Taxing  body 
must  have 
jurisdiction 


Guarantees 
against  in- 
justice must 
be  provided 


property  without  due  process  of  law,  it  may  become  so  under 
certain  circumstances.  Should  the  court  declare  that  either  the 
purpose  for  which  the  tax  was  levied  or  the  method  by  which 
it  was  assessed  and  collected  was  improper,  the  individual  might 
claim  that  he  was  deprived  of  his  property  without  due  process 
of  law. 

From  a  study  of  the  various  cases  four  rules  have  been  formu-' 
lated  which  must  be  observed  in  order  that  the  tax  be  accord- 
ing to  due  process  of  law:1  (i)  The  tax  must  be  for  a  public 
purpose.  This  has  already  been  discussed.  (2)  Either  the 
person  or  the  property  taxed  must  be  within  the  jurisdiction 
of  the  government  levying  the  tax.  Jt  is  to  be  noted  that  it 
is  not  necessary  that  both  the  person  and  property  should  be 
within  the,  jurisdiction.  Thus  persons  residing  in  one  jurisdiction 
and  possessing  property  in  another  jurisdiction  may  be  taxed  by 
both  jurisdictions  for  the  same  property.  Although  this  produces 
double  taxation,  the  court  has  held  that  it  was  not  contrary  to 
the  due  process  of  law.  (3)  In  the  assessment  and  collection 
of  the  tax  certain  guarantees  against  injustice  to  individuals, 
especially  in  the  way  of  notice  and  opportunity  for  a  hearing, 
shall  be  provided.  Due  process  of  law  does  not  require  a  judicial 
hearing  ;  it  is  satisfied  by  the  familiar  method  of  the  action  of 
the  board  of  assessors  and  warrant  of  the  tax  collector.2  Indeed, 
the  court  has  said  : 


Taxes  have  not,  as  a  general  rule,  in  this  country  since  its  independ- 
ce, nor  in  England  before  that  time,  been  collected  by  regular  judicial 
proceedings  in  a  court  of  justice.    The  necessities  of  government,  the 


[Due  process 

not^TquJrVa    ence'  nor  m  England  before  that  time,  been  collected  by  regular  judicial 
judicial 

nature  of  the  duty  to  be  performed,  and  the  customary  usages  of  the 
people,  have  established  a  different  procedure,  which,  in  regard  to  that 
matter,  is,  and  always  has  been,  due  process  of  law.3 


uniformity  (4)  The  principle  of  uniformity  must  be  observed.  This  general 
principle  is  enforced  by  the  specific  constitutional  direction,  that 
"  .  .  .all  duties,  imposts,  and  excises  shall  be  uniform  through- 
out the  United  States." 

1  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  I, 
p.  584. 

2  See  pp.  235-236. 

8  Kelley  v.  Pittsburgh,  104  U.  S.  78,  80. 


FINANCE  449 

In  discussing  this  the  court  has  said : 

The  uniformity  here  prescribed  has  reference  to  the  various  localities 
in  which  the  tax  is  intended  to  operate.  "  It  shall  be  uniform  throughout 
the  United  States."  Is  the  tax  upon  tobacco  void  because  in  many  of 
the  states  no  tobacco  is  raised  or  manufactured  ?  Is  the  tax  upon  dis- 
tilled spirits  void  because  a  few  states  pay  three-fourths  of  the  revenue 
arising  from  it  ?  The  tax  is  uniform  when  it  operates  with  the  same 
force  and  same  effect  in  every  place  where  the  subject  of  it  is  found.1 

Again,  in  1 894,  the  court  said : 

The  uniformity  required  by  the  United  States  Constitution  ...  is 
not  ...  as  respects  its  operation  upon  individuals,  but  is  merely  a  geo- 
graphical uniformity  requiring  the  same  plan  and  same  method  to  be 
operative  throughout  the  United  States.2 

Taking  the  two  statements  together,  uniformity  means  that  the  uniformity 
same  principle  of  classification  shall  apply  throughout  the  United 
States.    It  does  not  mean  that  all  persons  shall  pay  the  same 
rate  but  that  all  persons  or  objects  within  the  same  class  shall  throughout 

the  United 

pay  the  same  rate.    Uniformity  does  not  mean  that  the  states  states 
shall  contribute  the  same  amounts  but  that  the  same  classification 
and  the  same  rate  of  assessment  shall  be  applied  to  all  states  alike. 

It  is  to  be  noted,  furthermore,  that  the  principle  of  uniformity  uniformity 
is  not  applied  to  direct  taxes,  but  only  to  duties,  imposts,  and  appiynto 
excises.    Imposts,  which  in  the  largest  sense  of  the  word  would  direct  taxes 
include  all  taxes,  have  come  to  mean  in  the  United  States  indirect 
taxes.    Duties  are  taxes  levied  upon  the  importation  of  goods 
into  the  country.    Excises  are  taxes  imposed  upon  the  process  of 
manufacture  or  trade,  or  upon  some  right  or  privilege,  and  in  the 
United  States  are  commonly  known  as  internal  revenue  taxes. 
To  all  but  direct  taxes  the  principle  of  uniformity  applies.  The 
other  classes  of  duties  and  excises  are  restricted  in  two  other  ways  :  other 
(i)  "  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State."  3  (2) "  No  preference  shall  be  given  by  any  regulation  of  com- 
merce or  revenue  to  the  ports  of  one  State  over  those  of  another."4 

1  Head  Money  Cases  (1884),  Edye  v.  Robertson,  112  U.  S.  580,  594. 

2  Knowlton  v.  Moore,  178  U.  S.  41,  42. 

3  The  Constitution  of  the  United  States,  'Article  I,  Sect,  ix,  clause  5. 

4  Ibid.  Article  I,  Sect,  ix,  clause  6.    See  also  Cooley  v.  Board  of  Wardens  of 
the  Port  of  Philadelphia,  12  How.  299;  Fourteen  Diamond  Rings  \ :  United  States, 
183  U.  S.  176. 


450    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Direct  taxes  "  Direct  taxes,"  however,  "shall  be  apportioned  among  the 
several  States  which  may  be  included  within  this  Union,  accord- 
ing to  their  respective  numbers.  ..."  Many  federal  taxes  have 
been  resisted  on  the  ground  that  they  were  direct  taxes  and 
hence  unconstitutional  until  apportioned.  The  earliest  case  arose 
in  1798,  when  the  court  held  that  a  tax  upon  carriages  was 
not  a  direct  tax  within  the  meaning  of  the  Constitution.  In  the 
opinions  given  by  the  various  justices  it  was  suggested  that  direct 
taxes,  as  contemplated  by  the  Constitution,  were  of  two  sorts,  "a 
capitation  or  poll  tax,  simply,  without  regard  to  property,  profes- 
sion, or  any  other  circumstance  ;  and  a  tax  upon  land."  Justice 
Iredell,  however,  in  a  dictum,  laid  down  the  following  rule  : 

Definition  As  all  direct  taxes  must  be  apportioned,  it  is  evident  that  the  Consti- 

in  Jhlcourt  tution  contemplated  none  as  direct  but  such  as  could  be  apportioned. 

If  this  cannot  be  apportioned,  it  is,  therefore,  not  a  direct  tax  in  the 
sense  of  the  Constitution. 

That  this  tax  cannot  be  apportioned  is  evident.1 

In  other  cases  the  dictum  of  the  court,  that  direct  taxes  were 
of  only  two  sorts,  capitation  taxes  and  taxes  upon  land,  was 
followed.2  This  conclusion  was  unanimously  repeated  by  the 
court  in  sustaining  the  income  tax  of  i862.3  In  1895,  however, 
the  court  in  declaring  the  income  tax  of  1894  a  direct  tax,  and 
therefore  unconstitutional,  said  : 

income  taxes        The  real  question  is,  is  there  any  basis  upon  which  to  rest  the  con- 

dfrect°tues     tention  that  real  estate  belongs  to  one  of  the  two  great  classes  of  taxes, 

in  1895  and  the  rent  and  income  which  is  the  incident  of  its  ownership  belongs 

to  the  other?   We  are  unable  to  perceive  any  ground  for  the  alleged 

distinction.    An  annual  tax  upon  the  annual  value  or  annual  user  of 

real  estate  appears  to  us  t£e  same  in  substance  as  an  annual  tax  on  the 

real  estate,  which  would  be  paid  out  of  the  rent  or  income.4 

Moreover,  at  the  rehearing  of  the  case  the  same  reasoning  was 
applied  to  taxes  upon  income  from  personal  property,  and,  by 
a  decision  of  five  to  four,  taxes  upon  income  from  real  estate  or 

1  Hylton  v.  United  States,  3  Ball.  171,  181. 

2  W.  W.  Willoughby,The  Constitutional  Law  of  the  United  States,  pp.  61 5,  616. 
8  Springer  v.  United  States,  102  U.  S.  586. 

4  Pollock  v.  Farmers  Loan  and  Tntst  Co.,  157  U.S.  429,  581  ;   158  U.  S.  601.  "• 


FINANCE  45 1 

personal  property  as  well  as  poll  taxes  and  taxes  upon  land  were 
held  to  be  direct  taxes. 

In  1909  a  corporation  tax  of  one  per  cent  upon  all  net  profits  The  corpora- 
over  five  thousand  dollars  was  added  to  the  tariff  law  of  that  year.  ^ ta 
In  1911   the  court  held  that  this  was  not  an  income  or  direct 
tax,  but  rather  a  levy  on  a  peculiar  form  of  organization,  namely, 
a  corporation.   The  tax  was  thus  an  excise  tax 'upon  the  privilege 
of  doing  business  under  corporate  form.    Such  taxes,  as  has  been 
shown,  need  not  be  apportioned  according  to  population.1 

In  1913  the  Sixteenth  Amendment  was  adopted,  which  gave  The 
Congress  power  "  to  lay  and  collect  taxes  on  incomes,  from  what- 
ever  source  derived,  without  apportionment  among  the  several 
States,  and  without  regard  to  any  census  or  enumeration."  Acting 
upon  this,  Congress  in  the  tariff  act  of  1913  levied  an  income  tax. 

In  1915  the    constitutionality  of  the  law  was  argued  before  in  applying 
the  court  and  in  1916  upheld  in  all  its  points.2    Chief  Justice  2SSdSmenth 
White,  who  rendered  the  unanimous  opinion  of  the  court  (Justice  J£jdc°^  the 
McReynolds  not  taking  part),  first  met  the  contention  that  the  amendment 

, .  ......  .    relieved  in- 

tax,  not  being  a  direct  tax,  must  therefore  be  uniform.  He  showed  come  taxes 
that  the  amendment  did  not  confer  the  power  to  levy  income  nre0cTssity  of 
taxes  as  such,  for  that  power  was  already  possessed  by  the  gov- 
ernment ;  nor  did  the  amendment  necessarily  make  the  tax  an 
indirect  tax,  like  an  excise  or  impost ;  but  that  the  amendment 
was  drawn  for  the  purpose  of  doing  away  with  the  principle 
established  in  the  Pollock  ca^e : 

That  is,  of  determining  \fhether  a  tax  on  income  was  direct,  not  by 
a  consideration  of  the  burden  placed  on  the  taxed  income  upon  which 
it  directly  operated  but  by  taking  into  \*ew  the  burden  which  resulted 
on  the  property  from  which  the  income  was  derived,  since  in  express 
terms  the  amendment  provides  that  income  taxes,  from  whatever 
source  the  income  may  be  derived,  shall  not  be  subject  to  the  regula- 
tion of  apportionment. 

The  tax  upon  incomes  from  land  and  personal  property  still 
remained  direct  taxes  according  to  the  ruling  of  the  Pollock 
case,  but  were  by  the  amendment  relieved  from  the  rule  of 
apportionment.  They  did  not  by  the  amendment  become  indirect 

1  Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107. 

2  Brushaberv.  Union  P.  R.  €0.^240  U.  S.  I,  18. 


452    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  progres-    taxes  and  thus  subject  to  the  rule  of  uniformity.    The  other  con- 

taxatfon  not    tentions,  that  the  rule  of  due  process  of  law  was  violated  in  the 

duV°rocess0f  exempti°ns>  m  the  progressive  rate,  and  in  the  collection  at  the 

of  law  source   were    held    to   rest    upon    "the    mistaken    theory   that 

although  there  be  differences  between  the  subjects  taxed,  to 

differently  tax  them  transcends  the  limit  of  taxation  and  amounts 

to  a  want  of  due  process,  and  that  where  a  tax  levied  is  believed 

by  one  who  resists  its  enforcement  to  be  wanting  in  wisdom  and 

to  operate  injustice,  from  that  fact  in  the  nature  of  things  there 

arises  a  want  of  due  process  of  law  and  a  resulting  authority  in 

the  judiciary  to  exceed  its  powers  and  correct  what  is  assumed 

to  be  mistaken  or  unwise  exertions  by  the  legislative  authority 

of  its  lawful  powers,  even  although '  there  be  no  semblance  of 

warrant  in  the  Constitution  for  so  doing."  1 

PROCESS  OF  REVENUE  LEGISLATION 

Financial  The  most  significant   and  characteristic  feature  of  revenue 

governed  by  legislation  in  the  United  States  is  the  predominance  of  political 
ancl  tne  absence  of  financial  considerations.  This  condition 
n-  exists  for  two  reasons.  The  first  is  the  lack  of  connection' 
between  the  committees  charged  with  raising  the  revenue  and 
Lack  of  coor-  those  charged  with  .the  appropriations.  One  committee  frames 
the  bills  levying  taxes  while  eight  committees  frame  the  bills 
making  appropriations.  No  single  committee  or  person  is 
responsible  for  the  equalization  of  the  two. 

indirect  tax  The  second  reason,  and  the  more*  fundamental  one,  lies  in 
unpopular  the  nature  of  the  taxes  levied  and  in  the  political  history  of  the 
two  parties.  No  taxes  are*  popular,  but  the  tax  which  is  most 
easily  disguised,  whose  harden  can  be  most  easily  shifted,  is  the 
least  objectionable  from  a  political  standpoint.  The  framers  of 
the  Constitution  probably  recognized  this,  for  they  made  the 
levying  of  direct  taxes  so  difficult  that  it  was  evident  that  indirect 
taxes  were  to  be  considered  the  normal  kind.  Two  kinds  of 
indirect  taxes  were  possible  :  those  collected  at  the  ports  —  cus- 
toms duties  laid  on  articles  imported  into  the  country  —  and 
excise  taxes  upon  the  manufacture,  sale,  or  possession  of 
articles. 

1  240  U.  S.  c.6. 


I 


FINANCE  453 


In  making  a  choice  between  these  taxes  came  the  first  and  Political  par- 
most   fundamental   and   persistent   division   of   political  parties,  over  the  C< 
Both  parties  planned  to  use  and  have  used  both  customs  duties  "axes6  °f 
and  internal  excise  taxes.    But  the  Federalist  party,  and  its  suc- 
cessors,  the  Whig  and  Republican  parties,  have  insisted  that 
these  taxes  be  levied  in  such  a  proportion  that  the  greater  amount 
should  be  raised  by  customs  duties,  and  that  the  customs  duties 
should  be  so   arranged    that  American  industries,   particularly 
manufacturing,    should  be   protected.    Thus,   in   every  revenue 
discussion  the  two  political  principles  of  tariff  for  revenue  and 
tariff  for  protection  clash.    Neither  party  is  perfectly  consistent 
in  carrying  its  principles  to  the  logical  conclusion,  for  every 
tariff  bill  contains  elements  of  protection  and  certain  taxes  for 
revenue  only.    But  a  revision  of  the  tariff  is  the  signal  for  a  con-  The  revision 
flict  between  these  two  ideas  and  a  struggle  between  the  two .  a^lt*1 
parties  to  write  their  theories  into  the  bill.    This  is  true  whether  JJJJJJJJJ 
the  revision  is  taken  up  as  a  result  of  a  party  revolution,  as  in 
1912,  or  whether  the  tariff  is  revised  by  its  friends,  as  it  was 
in  1909. 

.  In  the  House  of  Representatives,  in  which  all  bills  levying 
taxes  must  originate,  the  Committee  on  Ways  and  Means  is 
charged  with  framing  revenue  legislation.  Because  of  the  political  ^gjflation 
importance  attaching  to  such  legislation  this  committee  is  con- 
sidered the  most  important  political  committee,  and  its  chairman 
is  the  floor  leader  of  the  majority.  The  chairman  of  the  Senate 
Committee  on  Finance  occupies  a  somewhat  similar  position 
whenever  a  revision  of  the  tariff  is  considered. 

In  the  preparation  of  a  tariff  bill,  the  Committee  on  Ways  and  Process  of 
Means  in  the  House  and  the  Committee  on  Finance  in  the  Senate  tariff  bins 
usually  obtain  permission  to  sit  during  the  recess  between  the 
sessions  and  to  hold  extended  hearings.    This  is  for  the  double  committee 

^  .A  ...  ...  0  hearings 

purpose  of  gaining  information  and  forestalling  criticism,  borne 
information  concerning  the  effect  of  the  proposed  revision  is 
undoubtedly  obtained,  but  this  information  need  not  be  utilized 
by  the  committee.  As  a  means  of  allowing  the  public  to  appear 
before  the  committee  and  express  opinions  it  serves  a  more  useful 
purpose.  Thus  public  hearings  may  be  used  to  disarm  the  criti- 
cism that  certain  interests  bring  pressure  to  bear  and  have  an 


• 


454    THE  GOVERNMENT  OF  THE  UNITED  STATES 

undue  influence  in  fixing  the  rates.    The  real  work  of  the  com- 
mittee is  done  in  secret.    The  members  representing  the  majority 

work  of  sub-  are  divided  into  subcommittees,  each  of  which  takes  a  section  of 
the  bill  and  prepares  it  in  accordance  with  the  general  principles 
held  by  the  party.  It  is  at  this  point,  if  anywhere,  that  improper 
influence  may  be  brought  to  bear,  and  it  is  here,  if  anywhere, 
that  the  great  manufacturing  interests  strenuously  push  their 
arguments.  When  the  bill  is  completed  it  may  be  submitted,  as 
a  matter  of  form,  to  the  whole  committee  as  a  mark  of  courtesy 
to  the  minority  members.  Otherwise,  according  to  the  practice 

submission     of  the  Republicans,  it  is  submitted  to  the  House.    The  Democrats 
in  1913  submitted  the  Underwood  Bill,  both  in  the  House  and 
in  the  Senate,  to  their  caucuses.    There  are  advantages  and  dis- 
advantages in  both  methods.    Unless  a  bill  has  the  indorsement 
•of  the  full  strength  of  the  party  caucus,  dissatisfied  members 
may  unite  with  the  minority  and  compel  the  adoption  of  ai 
unacceptable  amendment.    To  prevent  this  is  the  test  of  skillfi 
leadership,  such  as  was  shown  by  the  Republicans  in  1909.   Oi 
the  other  hand,  the  party  caucus,  undeterred  by  the  presence  of  th( 
minority,  may  force  its  own  leaders  to  accept  its  dictation.  In  191 
Mr.  Underwood  had  such  control  that  no  amendment  was  carri( 
either  in  the  caucus  or  in  the  House,  contrary  to  his  desire. 

introduction  The  bill  is  generally  introduced  in  the  House  by  a  long  an< 
elaborate  speech  by  the  chairman  of  the  Committee  on 
and  Means,  —  that  of  Mr.  Payne  in  1909  occupying  nine  hours. 
The  leader  of  the  minority  is  given  an  equal  opportunity  tc 
reply  and  then  a  period  for  general  debate  is  provided.  Evei 
member  desiring  to  speak  is  given  time,  if  not  a  hearing.  This 
is  generally  accepted,  not  out  of  any  hope  of  contributin 
knowledge  or  producing  any  alterations,  but  for  the  purpose  oi 
showing  his  constituents  that  he  is  active.1  Little  or  nothing  is 
accomplished  in  this  time,  save  that  the  leaders  gain  some  idea 
of  the  feeling  of  their  supporters.  After  the  general  debate  the 

co'mmitteeof  W11  is  read  in  the  Committee  of  the  Whole  under  the  five-minut* 

the  whole       rule,  and  here  is  found  real  debate  and  discussion  and  criticism. 

Seldom,  however,  is  an  amendment  carried  against  the  desire  of 

1  In  1909  two  weeks   of  general   debate  were  given,  the  House   meeting 
earlier  than  usual  and  holding  evening  sessions. 


FINANCE  455 

the  Committee  on  Ways  and  Means.  In  1909  only  four  days 
were  allowed  for  debate  under  the  five-minute  rule,  and  prefer- 
ence was  given  to  committee  amendments.  Separate  votes  were 
allowed  on  certain  specified  amendments  and  all  other  amend- 
ments were  to  be  voted  upon  in  the  gross.1  With  this  rule  the 
bill  was  reported  to  the  House  and  passed  substantially  as  it  had 
come  from  the  Committee  on  Ways  and  Means. 

After  passing  the  House  the  bill  goes  to  the  Senate.  Some-  Procedure  in 
times  the  Senate  does  not  wait  for  the  House  bill,  but  has  a  bill 
of  its  own  prepared  by  the  Committee  on  Finance.  When  the 
House  bill  appears,  the  Finance  Committee  bill  is  substituted 
for  it  as  an  amendment  and  is  considered  by  the  Senate.  The 
Senate  freely  alters  and  amends  the  work  of  the  House,  some- 
times not  merely  in  details  but  in  fundamental  principles. 

After  the  bill  has  passed  the  Senate  it  is  returned  to  the  conference 
House,   which   promptly  rejects  the    Senate  amendments  and  ° 
asks    for    a    conference.    The    conferees,    meeting    in    secret, 
attempt  to  compromise  divergencies  both  in  details  and  principle. 
This  is  done  sometimes  by  "trading"  and  sometimes  by  intro- 
ducing new  sections  into  the  bill.    The  president  may  also  take 
a  hand  at  this  point,  and  his  influence  is  generally  conclusive,  for 
the  veto  of  a  political  measure  of  such  importance  would  wreck 
the  prospects  of  a  party. 

The  greatest  evil  in  revenue  legislation  is  that  no  one  is 
responsible  —  not^th^  Senate,  for  it  cannot  originate  measures  ; 
not  the  House,  for  it  has  to  ^accerjt  the,  amendments  of  the 
Senate.  The  public,  however,  is  more  and  more  holding  the 
president  responsible,  recognizing  that  with  his  constitutional 
and  extra-constitutional  powers  he  is  in  a  position,  as  the  leader 
of  his  party,  to  enforce  the  principles  of  the  platform  on  which 
he  was  elected. 

KINDS  AND  COLLECTION  OF  TAXES 

The  greater  part  of  the  revenue  of  the  United  States  now 
comes  from  three  sources,  customs  duties,  interna^revenue  taxes, 
chiefly  in  the  nature  of  excises,  and  the  income_tax.  The  annual 

1  Report  of  the  Committee  on  Rules,  April  5,  1909,  in  Congressional  Record, 
Vol.  XLIV,  Part  II,  p.  1112. 


Method  of 
collection  of 
customs 
duties 


Internal 
revenue 


456    THE  GOVERNMENT  OF  THE  UNITED  STATES 

amount  raised  by  customs  duties  since  the  Civil  War  has  been 
enormous,  ranging  from  a  minimum  of  $130,000,000  in  1878 
to  over  $330,000,000  in  1910.  The  collection  of  this  revenue 
is  at  the  principal  seaports  of  the  country,  which  are  grouped 
into  collection  districts,  including  "ports  of  entry,"  not  neces- 
sarily seaports.  The  process  involves  the  entry  of  the  goods 
by  an  invoice  prepared  in  the  country  from  which  the  goods  are 
imported  and  sworn  to  in  the  presence  of  the  consul ;  the 
appraisal  of  the  value  of  goods  by  special  officers  appointed  to 
examine  goods  and  determine  the  correctness  of  the  invoice,  or, 
where  the  invoice  fails  to  give  satisfactory  information  concern- 
ing the  price  of  the  goods  in  the  foreign  country,  the  determina- 
tion of  the  proper  value  of  goods.  From  the  decisions  of  these 
officers  there  is  an  appeal  to  a  board  of  appraisers  and  thence, 
on  legal  questions,  to  a  special  Court  of  Customs  Appeals.  The 
third  step  is  the  payment  of  the  duty,  which  formerly  was 
required  to  be  in  gold  coin  or  its  equivalent ;  now  greater  lati- 
tude is  allowed.  For  large  ports,  like  New  York,  the  process 
of  examination,  appy^isal,  and  collection  of  duties  necessitates 
the  employment  of  an  enormous  force  and  one  which  is  so  liable 
to  political  influence  and  open  to  corruption  that  the  civil-service 
reform  principles  were  applied  to  it  before  it  became  customary 
to  employ  them  in  other  departments. 

The  internal  revenue,  the  collection  of  which  began  with  the 
establishment  of  the  government,  is  collected  in  sixty-six  dis- 
tricts, and  before  July  I,  1919,  when  "war-time  prohibition"  was 
introduced,  followed  in  January,  19 20, by  constitutional  prohibition, 
came  chiefly  from  liquor.^ gndjofcacco.  Of  the  $308,000,000  thus 
raised  in  1914  about  three  fourths  came  from  liquors,  about  one 
fifth  from  tobacco,  and  about  one  ninth  from  other  sources.  The 
miscellaneous  sources  at  present  are  not  important  and  include 
taxes  upon  playing  cards,  oleomargarine,  filled  cheeses,  and  certain 
excise  taxes.  During  periods  of  war,  however,  the  internal  revenue 
taxes  are  greatly  increased  and  new  ones  are  added.  During  the 
Civil  War,  in  1864,  the  receipts  from  this  source  exceeded  that 
collected  from  customs ;  during  the  war  with  Spain  stamp  taxes 
were  required  upon  checks,  receipts,  proprietary  articles,  and  many 
other  everyday  instruments  of  trade  and  commerce. 


FINANCE  457 

In  1917  the  War  Revenue  Act  introduced  a  novelty  in  Ameri-  war  Revenue 
can  finance.  As  regards  internal  taxes  it  rewerted  to  the  period  A 
of  the  Civil  War  in  the  variety  and  number  of  taxes  levied.  It 
also  laid  new  taxes  which  the  experience  of  European  countries 
had  proved  profitable.  Chief  among  these  was  the  tax  upon 
excess  profits,  which  alone  was  estimated  to  yield  a  billion 
dollars.  The  main  features  of  the  law  are  contained  in  thirteen 
sections,  levying  taxes  as  follows  :  (i)  incomes  ;  (2)  excess  profits  ; 
(3)  beverages,  running  all  the  way  from  $3.50  a  gallon  on  dis- 
tilled sprits  to  one  cent  on  soft  drinks  ;  (4)  tobacco  ;  (5)  facili- 
ties furnished  by  public  utilities  (in  this  section  freight  taxes 
were  levied  upon  transportation  furnished  by  freight,  passenger, 
Pullman,  express,  and  pipe-line  companies,  and  taxes  were  also 
levied  on  telephone  and  telegraph  messages  and  on  insurance 
policies)  ;  (6)  war  excise  taxes  on  a  variety  of  things,  such  as 
automobiles,  musical  instruments,  jewelry,  sporting  goods,  chew- 
ing gum,  cameras,  cosmetics,  patent  medicines,  and  moving- 
picture  films  ;  (7)  taxes  on  admissions  and  club  dues  ;  (8)  stamp 
taxes  on  stocks,  bonds,  notes,  parcel  post,  and  a  variety  of  legal 
papers;  (9)  an  additional  tax  upon  inheritances;  (10)  additions 
to  the  rates  of  postage  for  both  the  first-class  and  second-class 
matter.  This  is  the  first  time  that  the.  United  States  has 
attempted  to  use  the  Post  Office  as  a  mean&^af  Qbt^ining 
foreign  countries  have  followed  the  plan. 


In  the  collection  of  the  internal  revenue  the  attempt  is  made  stamp  tax 
to  make  the  manufacturer  pay  the  tax  automatically.  Hence 
there  were  elaborate  rules  and  regulations  concerning  the  conduct 
of  distilleries  and  breweries  and  tobacco  manufactories,  requiring 
certain  methods  of  operation  and  accounting  which  must  be  open 
at  all  times  to  the  inspection  of  the  collector.  The  tax  is  ordi- 
narily paid  by  stamps  which  must  be  affixed  to  the  package 
containing  the  taxed  articles,  hence  the  collector,  knowing  the 
capacity  of  the  plant,  can  readily  detect  fraud  by  noting  the 
amount  of  stamps  purchased.  The  affixing  of  stamps  upon 
receipts  and  checks  was  enforced  by  the  provision  that  without 
such  stamps  the  instrument  would  have  no  legal  value. 

The  income  and  corporation  taxes  are  recent  experiments  and  income  tax 
are  collected  by  the  collectors  of  internal  revenue.    During  the 


Corporation 
tax 


Income  tax 
of  1913 


458    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Civil  War  period  an  income  tax  was  levied  and  its  legality  was 
sustained  by  the  courts,  but  when  a  new  law  was  passed,  the 
court,  in  1895,  held  that  many  features  of  it  were  unconstitu- 
tional. To  the  tariff  act  of  1909  was  added  a  2  per  cent  tax 
upon  the  incomes  of  certain  corporations  engaged  in  interstate 
commerce.  This  tax  has  proved  not  merely  a  good  revenue 
measure1  but  has  enabled  the  government  to  gain  information 
concerning  a  class  of  corporations  which  public  opinion  now 
regards  with  suspicion.  In  1913  an  amendment  to  the  Consti- 
tution made  legal  the  collection  of  income  taxes  from  every 
source,  and  in  the  tariff  act  of  that  year  a  progressive  tax  was 
laid  upon  incomes  over  $3000,  with  certain  exemptions.  This 
tax  began  at  the  rate  of  I  per  cent  upon  incomes  of  $3000, 
while  those  over  $20,000,  $50,000,  $75,000,  $100,000,  $250,- 
ooo,  and  $500,000  were  subject  to  an  additional  tax  of  I,  2,  3, 
4,  5,  and  6  per  cent,  respectively.  Another  novel  feature  of  the 
law  required  the  collection  of  the  tax  at  its  "  source."  By  this 
provision  all  persons  or  corporations  paying  rent,  interest,  wages, 
and  so  forth,  must  make  the  proper  deductions  required  by  the 
law.  The  novelty  of  this  method  of  collection  and  the  obscurity 
of  some  of  the  regulations  of  the  department  if  not  of  the  law 
itself  aroused  considerable  opposition  when  it  was  first  put  in  force. 
Nevertheless,  it  has  proved  a  good  revenue  producer,  yielding  in 
1913-1914,  $28,000,000,  and  in  1914-1915,  $41,000,000:- 
The  Emer-  With  the  outbreak  of  the  European  War  it  became  necessary 

nue  Act,  1914  for  the  United  States  to  increase  its  revenue.  Consequently,  in 
1914  an  Emergency  Revenue  Act  was  passed,  which  increased 
the  taxes  on  beer  and  certain  wihes  and  on  tobacco ;  laid  special 
taxes  upon  bankers,  brokers,  and  commission  merchants,  and 
proprietors  of  public  amusements;  levied  a  variety  of  stamp 
taxes  on  business  transactions  and  upon  telephone  and  telegraph 
messages,  and  freight  and  express  receipts  and  Pullman  fares ; 
and  a  stamp  tax  upon  chewing  gum  and  toilet  articles.  About 
$52,000,000  additional  revenue  was  thus  secured.  This  act  was 
continued  by  joint  resolution  of  Congress  of  December  17,  1915, 
until  the  close  of  1916.  In  September  of  that  year  a  new  revenue 
act  was  passed,  the  chief  features  of  which  were  increases  upon ' 

1  In  1915,  $39,000,000;   1916,  $57,000,000;   1917,  $180,000,000. 


FINANCE  459 

the  former  taxes  ana  certain  special  taxes,  the  most  important 
of  which  were  the  estate  tax  of  from  i  to  10  per  cent  and  an 
excise  tax  of  \2\  per  cent  above  the  income  tax  upon  manu- 
facturers of  munitions.  It  has  been  held  that  "  The  chief 
feature  of  the  law,  however,  was  the  increase  in  the  income 
tax :  the  normal  rate  being  raised  to  2  per  cent  and  the  scale 
of  progression  being  made  sharper."  l 

In  March,   1917,  the  excess  profit  taxes  and  the  inheritance  The  war 
taxes  were  increased,  and  in  October  the  War  Revenue  Act  was  *™™*  Act> 
passed.    In  addition  to  the  special  taxes  already  discussed  the 
important  features  were  the  additions  to  the  income  tax  and  the 
excess  profits  tax. 

The  normal  income  tax  was  increased  to  4  per  cent  and  the  income  tax 
exemption  lowered  to  $1000  for  single  persons  and  $2000  for 
married.  The  surtaxes  were  also  increased  materially.  "The 
result  is  that  the  maximum  rate  is  now  67  per  cent,  that  is, 
2  per  cent  old  normal  tax,  2  per  cent  supplementary  normal 
tax,  13  per  cent  old  additional  tax  and  50  per  cent  new  addi- 
tional tax.  .  .  .  Never  before,  in  the  annals  of  civilization,  has  an 
attempt  been  made  to  take  as  much  as  two  thirds  of  a  man's 
income  by  taxation."  2 

The  excess  profits  tax  3  is  a  tax  not  upon  persons  or  things  Excess  profits 
but  upon  business.  It  applies  not  simply  to  war  profits  but  to 
profits  from  all  business.  The  normal  amount  of  $3000  was 
exempted  for  corporations  together  with  an  amount  equal  to  the 
percentage  of  the  invested  capital  represented  by  the  average 
annual  income  during  the  pre-war  period  (1911-1914),  provided 
that  this  percentage  shall  in  no  case  be  less  than  7  nor  more  than 
9  per  cent  of  the  capital.  If  the  business  was  not  in  existence 
during  those  years,  the  deduction  was  fixed  at  8  per  cent.  It  is 
described  by  Professor  Seligman  as  follows : 

From  this  base  line  of  normal  profits  are  computed  the  excess  profits, 
the  tax  rising  progressively  with  the  excess,  being  fixed  at  20  per  cent 
on  the  excess  profits  up  to  15  per  cent ;  3*5  per  cent  on  the  excess  from 

1  Professor  E.  R.   Seligman,  "  The  War  Revenue  Act,"  in  Political  Science 
Quarterly^  Vol.  XXXIII,  p.  3.    See  also  p.  37  for  a  comparative  table. 

2  Ibid.  p.  18. 

8  Ibid.  pp.  24-31. 


460    THE  GOVERNMENT  OF  THE  UNITED  STATES 

15  to  20  per  cent;  35  per  cent  on  the  excess  from  20  to  25  per  cent; 
45  per  cent  on  the  excess  from  25  to  33  per  cent ;  and  60  per  cent  on 
the  excess  profits  over  33  per  cent.1 

Government  All  the  revenue  of  the  United  States  is  deposited  either  in 
the  treasury  at  Washington,  or  in  the  subtreasuries,  or  in  banks 
designated  as  government  depositories.  In  1791  the  Bank  of 
the  United  States  was  chartered,  a  private  corporation  in  which  the 
government  was  represented,  which  had  the  practical  monopoly 
of  the  government  business.  A  second  bank,  chartered  in  1816, 
became  the  object  of  political  attack  by  Jackson  and  was  destroyed 
by  the  so-called  "removal  of  government  deposits."  In  1840 
an  act  was  passed  establishing  a  treasury  at  Washington  and  sub- 
treasuries  in  other  parts  of  the  country.  This  act  was  repealed 
in  1841  but  reenacted  in  1846  and  modified  in  1861  and  1864 
so  that  certain  banks  became  government  depositories.  By  the 
act  of  1913  the  government  funds  are  deposited  in  the  Federal 
Reserve  Banks,  subject  to  check  by  the  government. 

POWER  TO  BORROW  MONEY  AND  TO  COIN  MONEY 

HOW  congress  %  Congress  may  also  borrow  money  upon  the  credit  of  the] 
mo'ney8  United  States.2  In  one  of  the  early  drafts  of  the  Constitution 
this  clause  included  the  words  "  and  emit  bills  of  credit."  These, 
however,  were  stricken  out,  not  because  it  was  intended  to  deny 
such  power  to  Congress,  but  rather  because  it  was  assumed  that- 
Congress  possessed  this  power.  In  general,  Congress  has  bor- 
ferm  notes1*"  rowec*  monev  by  issuing  bonds  and  short-term  notes,  usually 
bearing  interest.  These  are  sold  subject  to  redemption  by  the 
government  either  at  some  specified  date  or  before  a  certain  date 
at  the  pleasure  of  the  government.  Between  the  years  1861  and 
1865  the  debt  of  the  United  States  was  increased  by  over  two 
billion  dollars  by  this  means.  Large  as  these  figures  seem,  they 
were  surpassed  in  the  World  War.  Twenty-one  billion  dollars 
of  bonds  were  issued  in  addition  to  treasury  certificates.  It  should 
be  remembered,  however,  that  eight  billions  were  advanced  to  the 
Allies,  which  materially  reduced  the  net  bonded  debt. 

1  For  criticism  see  Professor  E.  R.  Seligman,  "The  War  Revenue  Act,"  in'J 
Political  Science  Quarterly,  Vol.  XXXIII,  pp.  28-32. 

z  The  Constitution  of  the  United  States,  Article  I,  Sect,  viii,  clause  2. 


FINANCE  461 


uring  the  Civil  War  Congress  resorted  to  the  issue  of  bills  Paper  money 
of  credit,  or  paper  money.  By  three  acts  passed  between  1861  civSiwar6 
and  1863,  four  hundred  and  fifty  million  dollars  of  this  currency 
was  authorized  and  in  1864  about  four  hundred  and  fifty  million 
dollars  was  actually  issued.  The  power  of  Congress  to  issue  these 
notes  was  never  questioned.  However,  Congress  went  further 
and  made  these  notes  legal  tender  for  private  debts  whether  con- 
tracted before  or  after  the  issuance  of  these  notes.  Since  the 
notes  depreciated  rapidly  it  was  theoretically  possible  in  Novem- 
ber, 1864,  for  a  debtor  to  satisfy  a  claim  of  one  hundred  dollars 
by  tendering  "  greenbacks,"  the  market  value  of  which  was  only  "Green- 

'orty-three  dollars.     The  constitutionality  of  this  act  was  denied  * 
the  Supreme  Court  in   iS/o1  but  later  affirmed   in   i87i.2 
Between  the  two  decisions  two  new  justices  had  been  added 
to  the  court.    Even  with  these  changes  the  court  upheld  the  con- 

titutionality  of  the  law  by  a  majority  of  only  one.    Its  reasoning 
was  as  follows : 

We  do  not  rest  their  validity  upon  the  assertion  that  their  emission  Grounds  of 
is  coinage,  or  any  regulation  of  the  value  of  money ;  nor  do  we  assert 
that  Congress  may  make  anything  which  has  no  value  money.  What 
we  do  assert  is,  that  Congress  has  power  to  enact  that  the  government's 
promises  to  pay  money  shall  be,  for  the  time  being,  equivalent  in  value 
to  the  representative  of  value  determined  by  the  coinage  act  or  to 
multiples  thereof. 

This  conclusion  was  reached  by  a  construction  of  the  Con-  inherent 
itution  which  comes  very  close  to  the  theory  of    ''inherent  sovereignty, 
sovereignty,"  which  has  since  been  denied  by  the  court.   In  1883 
.e  court  again  affirmed  the  constitutionality  of  the  power,  deriv- 
ing it  from  the  aggregate  of  financial  powers  granted  to  Congress, 
and  finding  that  giving  to  the  notes  the  quality  of  legal  tender 
was  "  ....  an  appropriate  means,  conducive  and  plainly  adapted  Elastic 
to  the  execution  of  the  undoubted  powers  of  Congress,  consistent 
with  the  letter  and  spirit  of  the   Constitution,   and  therefore, 
within  the  meaning  of  that  instrument,  *  necessary  and  proper  for 
carrying  into  execution  the  powers  vested  by  this  Constitution 
in  the  government  of  the  United  States.'  "  3 

1  Hepburn  v.  Griswold,  8  Wall.  603.  2  Knox  v.  Lee,  \2  Wall.  457,  553. 

3  JulliardM.  Greenman,  no  U.  S.  421,  450. 


462    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Power  to  Inseparably   connected   with    the    power   to   levy   taxes    and 

com  money  Borrow  money  are  the  grants  to  Congress  of  the  power  "  to  coin 
money  and  regulate  the  value  thereof  .  .  .  " l  and  "  to  provide 
for  the  punishment  of  counterfeiting  the  securities  and  current 
coin  of  the  United  States."2  There  have  been  few  constitutional 
questions  concerning  these  two  grants.  In  fact,  the  power  to 
punish  counterfeiting  was  hardly  necessary  and  might  properly 
have  been  derived  either  from  the  right  to  coin  money  or  to 
pass  laws  necessary  for  the  executing  of  this  right.  The  right 
to  coin  money,  including  as  it  does  the  right  to  fix  the  value, 
gives  Congress  undoubted  power  to  determine  what  coins  shall 
be  considered  legal  tender.  But  whether  Congress  can  give  to 
that  which  has  no  intrinsic  value  a  legal -tender  value  was  one  of 
the  questions  considered  in  the  legal-tender  cases  just  discussed, 
and  this  section  was  one  of  the  many  invoked  by  the  court  in] 
producing  the  aggregate  power  which  the  court  found  sufficient! 
to  allow  Congress  to  issue  bills  of  credit  having  the  character 
of  legal  tender. 

congress  pro-       Congress  is  furthermore  protected  in  its  .  exercise  of  these 

these  powers    powers  by  prohibitions  upon  the  states.3    Not  until  1830  was  the 

fionPsr°onlbl"      court  called  uPon  to  decide  judicially  what  a  bill  of  credit  was. 

states  in  tnat  case  Missouri  had  issued  interest-bearing  certificates  in 

denominations  from  ten  dollars  to  fifty  cents,  and  made  themi 

receivable  for  the  discharge  of  taxes  and  payment  of  debts  duel 

the  state.   In  his  opinion  Marshall  thus  defined  his  conception 

of  a  bill  of  credit :  . 

Marshall's  In  its  enlarged,  and   perhaps  its  literal  sense,  the  term    "bill  of 

aCbiii  of*        credit "  may  comprehend  any  instrument  by  which  the  state  engages 

credit  to  pay  money  at  a  future  day ;  thus  including  a  certificate  given  for 

money  borrowed.    But  the  language  of  the  Constitution  itself,  and  the 

mischief  to  be  prevented,  which  we  know  from  the  history  of  our 

country,  equally  limit  the  interpretation  of  the  terms.    The  word  "  emit " 

is  never  employed  in  describing  those  contracts  by  which  a  state  binds 

itself  to  pay  money  at  a  future  day  for  services  actually  received,  or 

for  money  borrowed  for  present  use;  nor  are  instruments  executed 

1  The  Constitution  of  the  United  States,  Article  I,  Sect,  viii,  clause  5. 

2  Ibid.  Article  I,  Sect,  viii,  clause  6. 

8  No  State  shall  .  .  .  coin  money ;  emit  bills  of  credit ;  make  anything  but 
gold  and  silver  coin  a  tender  in  payment  of  debts  ; . . .  —  Article.  I,  Sect,  x,  clause  l 


FINANCE  463 

for  such  purposes,  in  common  language,  denominated  "  bills  of  credit." 
To  "  emit  bills  of  credit "  conveys  to  the  mind  the  idea  of  issuing 
paper  intended  to  circulate  through  the  community  for  its  ordinary 
purpose,  as  money,  which  paper  is  redeemable  at  a  future  day. 

And  these  bills  are  equally  illegal  whether  made  legal  tender  or 
not.  The  majority  of  the  court  thus  condemned  the  Missouri 
-law  as  an  attempt  to  do  the  very  thing  which  Marshall  had 
declared  was  forbidden.1 

After  the  death  of  Marshall  the  court  under  Taney  somewhat 
modified  this  strict  definition  of  "  a  bill  of  credit."  Kentucky  had 
chartered  a  bank  of  which  the  state  was  the  sole  shareholder, 
with  power  to  issue  notes  payable  to  the  bearer  on  demand,  desig- 
nated to  circulate  as  money.  This  proceeding  was  upheld  by  the 
majority  of  the  court  according  to  the  following  reasoning : 

To  constitute  a  bill  of  credit  within  the  Constitution,  it  must  be  Later 
issued  by  a  State,  on  the  faith  of  the  State,  and  designed  to  circulate  modiflcation 
as  money.    It  must  be  a  paper  which  circulates  on  the  credit  of  the 
state ;  and  so  received  and  used  in  the  ordinary  business  of  life. 

The  individual  or  committee  who  issue  the  bill  must  have  the  power 
to  bind  the  state ;  they  must  act  as  agents,  and  of  course  do  not  incur 
any  personal  responsibility,  nor  impart,  as  individuals,  any  credit  to  the 
paper.  These  are  the  leading  characteristics  of  a  bill  of  credit,  which 
a  state  cannot  emit.2 

The  fact  that  the  state  was  the  sole  stockholder  of  the  bank 
made  no  difference  to  the  mind  of  the  court ;  on  the  contrary, 
by  becoming  a  partner  in  the  enterprise  it  divested  itself  of  some 
of  its  sovereignty.  Later  decisions  follow  out  this  line  of 
reasoning. 

THE  CURRENCY 

The  currency  of  the  United  States  consists  of  two  classes,  Kinds  of 
coin  and  paper.  The  coins  of  the  United  States  are  manufac- 
tured at  the  mints,  at  Philadelphia,  San  Francisco,  Denver,  and 
New  Orleans,  supervised  by  a  Director  of  the  Mint.  Until 
1873  both  gold  and  silver  were  coined  at  varying  ratios;  that 
year,  however,  the  coinage  of  silver  dollars  was  stopped.  In 


1  Craig v.  Missoiiri,  4  Pet.  410,  431,  432. 

2  Briscoe  v.  Bank  of  Kentucky,  1 1  Pet.  258. 


464    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Coin 


Paper: 


(i)  Green- 
backs 


1878  a  law  was  passed  requiring  the  purchase  and  coinage  of 
not  less  than  two  million  dollars'  worth  of  silver  each  month, 
while  in  1890  this  was  amended  to  require  the  purchase  of  not 
less  than  four  million  five  hundred  thousand  ounces  of  silver  a 
month,  with  provision  for  the  coinage  as  needed.  As  the  relative 
value  of  silver  and  gold  had  declined  and  the  government  ratio 
remained  the  same,  these  silver  dollars  had  a  fictitious  value 
dependent  upon  the  confidence  of  the  public  in  the  power  of  the 
government  to  redeem  them  in  gold.  Owing  to  the  crisis  of 
1893  the  law  requiring  the  purchase  of  silver  was  repealed.  In 
1900  the  question  was  settled  by  the  passage  of  an  act  making 
it  the  duty  of  the  Secretary  of  the  Treasury  to  keep  all  kinds  of 
money  on  a  parity  with  gold.  The  reserve  was  established  at  one 
hundred  and  fifty  million  dollars,  and  it  was  the  duty  of  the 
Secretary  to  sell  bonds  when  this  fell  below  one  hundred  million.1 
In  addition  to  the  silver  dollars  there  are  in  circulation  other 
coins  of  purely  fictitious  value,  the  so-called  fractional  currency : 
half  dollars,  quarters,  dimes,  five-cent  pieces,  and  cents.  These 
are  not  legal  tender  for  large  amounts,  and  the  total  amount  is 
so  small  that  they  threaten  the  security  of  the  system  to  a  very 
slight  degree.  The  other  coins  are  gold — double  eagles  or  twenty- 
dollar  pieces,  eagles  or  ten-dollar  pieces,  half  eagles  or  five-dollar 
pieces,  and  quarter  eagles  valued  at  two  dollars  and  a  half.  These 
have  an  actual  market  value  equal  to  their  face  value. 

The  paper  currency  of  the  United  States  may  be  considered 
in  three  classes  :  government  notes,  certificates  of  coin  or  bullion, 
and  bank  notes.  The  government  notes,  the  "  greenbacks,"  were 
issued  during  the  Civil  War  and  are  purely  fiat  money,  given  a 
legal-tender  value  by  legislation  and  uphe!4  by  the  court.  There 
were  over  four  hundred  and  fifty  million  dollars  authorized  dur- 
ing the  war,  of  which  aboi^t  one  hundred  million  were  retired 
before  such  retirement  was  prohibited  by  legislation.  The  laws 
of  1878  and  1890  requiring  the  purchase  of  silve/  could  not 
keep  coins  in  circulation,  hence  sirver  certificates  were  issued, 
nominally  secured  by  the  coined  silver  in  the  treasury.  After 
1890  little  silver  bullion  was  coined,  and  treasury  notes  were 
issued  against  the  uncoined  bullion  stored  in  the  treasury.  These, 

i  U.  S.  Stat.  at  Large,  Vol.  XXXI,  p.  45. 


FINANCE  465 

like  silver  coins  and  greenbacks,  depend  for  their  value  upon  the 
power  of  the  government  to  redeem  them.  Custom  had  fixed 
the  sum  of  one  hundred  million  dollars  in  gold  as  a  reserve 
with  which  the  treasury  might  meet  these  obligations.  In  1893, 
however,  the  continual  decline  in  relative  value  of  silver  and  the 
diminishing  revenue  of  the  government  caused  anxiety  upon 
the  part  of  the  public  as  to  the  government's  power  to  maintain 
this  reserve  and  redeem  the  increasing  charge  against  it.  The 
Secretary  of  the  Treasury  was  forced  to'  sell  bonds  in  order  to 
maintain  the  reserve ;  panic  resulted,  and  finally  the  Silver 
Purchase  Act  was  repealed,  the  redemption  fund  increased  to 
one  hundred  and  fifty  million  dollars,  and  authority  was  given 
the  Secretary  of  the  Treasury  to  sell  bonds  whenever  this  fund 
fell  below  one  hundred  million  dollars. 

The  third  kind  of  currency  in  circulation  in  the  United  States  (4)  National 
is  known  as  national  bank  notes.    These  are  the  product  of  the  secure™  by 
national  banking  system  established  during  the  Civil  War.    This  J^JJ* states 
system  was  designed  for  two  purposes  :  to  give  a  market  for  the 
sale  of  United  States  bonds,  and  to  restrict  the  circulation  of 
the  notes  of  state  banks.    To  insure  the  latter,  a  tax  of  10  per 
cent  was   placed  upon  all   notes   issued  by  state  banks.     The 
national  banking  system,  which  with  few  changes  was  in  opera- 
tion from   1863   to   1914,   gave  the  country  a  safe  system  of 
bank  notes,  and  the  government  a. ready  market  at  a  premium 
for  its  securities.    It  did  not,  however,  fulfill  the  purposes  of 
an  ideal  banking  system  inasmuch  as  its  currency  was  inelastic, 
its  reserve  requirements  immobile,  and  its  use  to  the  government 
in  its  financial  operations  of  little  value. 

\ 
THE  FEDERAL  RESERVE  BANKING  SYSTEM 

In  1913  a  statute  establishing  a  new  banking  system  was  put  Federal  Re- 
in operation.    The  system  attempts  to  accomplish  the  following  fn^system^ 
things :    ( I )  Through  arranging  the  banks  of  the  country  into  (x>  Regional 
groups,  each  dominated  by  a  reserve  bank  owned  by  the  banks 
within  the  district,  to  allow  each  bank  to  benefit  by  the  reserves 
accumulated  by  all  the  banks  within  the  district.    The  amount  of 
reserves  each  bank  and  the  regional  reserve  banks  must  maintain 


466    THE  GOVERNMENT  OF  THE  UNITED  STATES 


(2)  Discount 
provisions 


(3)  Notes 
based  on  cur- 
rency, bonds, 
and  commer- 
cial paper 


(4)  Govern- 
ment funds 
deposited  in 
Federal  Re- 
serve banks 


(5)  Federal 
Reserve  Board 


Comptroller 
of  the  Cur- 
rency 


is  fixed  by  law,  although  the  Federal  Reserve  Board,  which  has 
general  oversight  of  the  system,  may  under  certain  conditions 
allow  the  banks  to  maintain  reserves  of  smaller  amounts  by  pay- 
ing a  graduated  tax.  The  Federal  Reserve  Board  also  serves  to 
connect  the  various  regional  reserve  banks  into  one  system. 
(2)  The  provisions  regarding  discount  are  made  more  elastic 
and  allow  the  banks  to  receive,  discount,  and  rediscount  com- 
mercial paper  of  much  more  varied  character  than  under  the 
old  system.  (3)  Instead  of  bank  notes  issued  upon  the  security 
of  government  bonds  bought  in  the  market,  the  banks  are 
allowed  to  issue  notes,  secured  by  reserves  consisting  of  cur- 
rency, securities,  and  commercial  paper.  These  new  notes  are 
secured  by  the  bank  issuing  them,  the  regional  banks,  and 
by  a  reserve  in  the  United  States  Treasury.  The  aim  is  to  pro- 
vide some  element  of  elasticity  dependent  upon  the  needs  of 
business  rather  than  upon  the  price  of  bonds.  (4)  Proper  facili- 
ties are  provided  for  transacting  the  government  business.  The 
old  system  allowed  the  Secretary .  of  the  Treasury  to  designate 
certain  national  banks  as  government  depositories,  but  the  greater 
part  of  the  funds  of  the  treasury  were  withdrawn  from  circula- 
tion and  held  either  in  the  treasury  or  the  various  subtreasuries, 
where  the  government  lost  interest  upon  them.  Under  the  new 
system  the  government  funds  will  be  deposited  in  the  Federal 
Reserve  banks,  and  the  government,  like  any  other  depositor, 
will  pay  by  check,  while  the  deposits  may  be  used  for  reserves 
and  security.  (5)  Government  supervision  of  the  closest  sort  is 
provided  by  the  establishment  of  a  Federal  Reserve  Board,  con- 
sisting of  the  Secretary  of  the  Treasury,  the  Secretary  of  Agri- 
culture, the  Comptroller  of  the  Currency,  ex  officio,  and  four 
others  appointed  for  the  terms  of  eight  years.  The  evident 
theory  of  the  system  is  to  allow  greater  freedom  by  cooperation 
and  government  supervision. 

The  Comptroller  of  the  Currency  is  a  semi-independent 
officer  and  has  charge  of  the  application  of  the  banking  laws. 
All  national  banks  are  required  to  report  to  his  office  several 
times  a  year,  and  through  bank  examiners  he*  conducts  frequent 
examinations  of  their  resources.  He  is  given  power  to  close  any 
bank  or  may  force  it  into  bankruptcy. 


FINANCE  467 

METHOD  OF  APPROPRIATING  MONEY  1 

Until  1823  one  committee,  the  Committee  on  Ways  and  committee 
Means,  prepared  a  single  appropriation  bill  for  all  the  needs  of  Means**" 
the  government.  As  this  committee  was  also  intrusted  with  the  JJJJJJ^JJ" 
preparation  of  the  revenue  bills,  attention  could  be  given  to  the  financial 
balancing  of  the  revenues  and  expenditures.  In  1823  a  separate 
bill  for  fortifications  was  passed,  and  from  that  time  on  the 
number  of  appropriation  bills  has  increased.  At  present  there 
are  usually  thirteen  regular  appropriation  bills  besides  the  defi- 
ciency appropriation  bill,  which  passes  quite  as  regularly  as  the 
other  bills.  Until  1865  the  Committee  on  Ways  and  Means 
continued  to  control  the  amount  of  the  appropriations  in  these 
bills.  Other  committees  might  authorize  but  the  Committee  on 
Ways  and  Means  alone  could  appropriate.  Thus  it  monopolized 
the  control  of  legislation  and  arrogated  to  itself  the  right  to  pass 
upon  the  work  of  other  committees.  It  controlled  finance,  it  is 
true,  and  it  doubtless  was  the  means  of  enforcing  some  degree 
of  economy  and  of  keeping  the  expenditures  in  some  relation  to 
the  revenues.  But  its  all-pervading  functions  exposed  it  to  attacks,  Attacks  on 
some  of  which  were  perhaps  justified.  A  single  committee  of 
seven  or  nine  men,  no  matter  how  able,  chosen  for  their  ability 
to  frame  revenue  legislation  and  to  control  finance,  is  hardly 
capable  of  passing  upon  the  relative  merits  of  military  or  naval 
programs  or  of  determining  the  policy  to  be  pursued  by  the 
agricultural  department.  Yet  this  is  just  what  the  Committee 
on  Ways  and  Means  attempted  to  do.  Not  content  with  exer- 
cising its  expert  knowledge  in  finance  it  claimed  to  possess  the 
expert  knowledge  acquired  by  the  other  committees.  In  this 
respect  the  criticism  of  the .  committee  and  the  attack  upon  its 
activities  was  perhaps  justified.  The  development  of  the  govern- 
ment and  the  expansion  of  its  activities  made  it  physically 
impossible  for  a  single  committee  to  control  the  whole  field. 

Other  elements,  however,  were  needed  to  make  the  attack  suc- 
cessful. These  were  not  wanting  in  the  jealousy  of  the  chairmen 

1  H.  J.  Ford,  The  Cost  of  Our  National  Government;  Speeches  by  Con- 
gressmen Fitzgerald,  Sherley,  and  Tawney  in  Congressional  Record,  June  24, 
1913,  Vol.  L,  Part  III,  pp.  2154-2162  ;  February  28,  1913,  Vol.  XLIX,  Part  V, 
PP-  4349-4355- 


The  Commit- 
tee on  Appro- 
priations 


Other  appro- 
priating 
committees 


Lack  of  coor- 
dination in 
financial 
legislation 
not  fatal, 
because  of 
national 
prosperity 
and  surplus 


468    THE  GOVERNMENT  OF  THE  UNITED  STATES 

of  other  committees  and  the  personal  rivalries  in  the  House.  In 
1865  the  committee's  assailants  succeeded  in  having  a  Commit- 
tee on  Appropriations  established.  Had  the  process  of  distri- 
bution stopped  here  and  had  the  Committee  on  Appropriations 
been  constituted  in  part  an  ex-officio  committee,  as  was  later 
suggested,  it  might  have  been  possible  to  defend  this  action. 
But  the  new  committee  was  appointed  in  the  same  way  as  the 
other  committees  of  the  House,  and  attempted  to  exercise  the 
same  sort  of  control  as  the  Committee  on  Ways  and  Means 
had  claimed.  There  were  thus  the  same  criticisms  and  the  same 
arguments  against  the  power  of  the  Committee  on  Appropriations 
as  had  been  brought  against  the  Committee  on  Ways  and  Means, 
and  the  same  personal  motives  were  brought  into  play.  In  1877 
this  attack  was  in  its  turn  successful  in  part,  and  in  1885  five 
committees1  were  given  the  power  to  report  appropriation  bills 
with  the  same  privileges  as  the  Committee  on  Appropriations. 
The  process  of  disintegration  has  continued,  until  now  eight  dif- 
ferent committees  report  the  fourteen  appropriation  bills  which 
each  Congress  has  to  pass. 

Both  theoretically  and  practically  this  course  should  prove 
fatal  to  economy  and  efficiency.  Such  has  been  the  case.  Theo- 
retically it  is  preposterous  to  vest  in  the  hands  of  one  committee, 
that  on  Ways  and  Means,  the  raising  of  the  revenue,  and  to  scatter 
among  eight  unrelated  committees  in  the  House  and  an  almost 
equal  number  in  the  Senate  the  spending  of  the  revenue.  It 
would  seem  impossible  to  establish  any  sort  of  balance  between 
the  revenue  and  expenditures,  and  it  would  seem  that  financial 
disaster  was  inevitable.  This  has  been  escaped  for  two  reasons. 
In  the  first  place  from  1860  to  1912,  with  the  exception  of  the 
years  1 894  to  1 897,  the  revenue  has  been  raised  not  for  financial 
but  for  economic  purposes.  Protection  was  an  economic  theory 
and  produced  a  surplus.  This  surplus  was  so  great  that  not 
even  such  a  faulty  system  of-  finance  and  extravagant  appropri- 
ations could  prevent  the  reduction  of  the  bonded  debt  of  the 
United  States  more  rapidly  than  financiers  and  bankers  deemed 
wise.  Moreover,  with  the  exception  of  short  periods  of  depression 

1  The  Committees  on  Foreign,  Military,  Naval,  and  Indian  Affairs,  and  the 
Committee  on  Post  Offices  and  Post  Roads. 


FINANCE  469 

the  country  has  enjoyed  prosperity  not  experienced  by  other 
nations.  The  national  wealth  has  increased  even  more  rapidly 
than  national  extravagance.  Thus,  when  one  Congress  was  re- 
proached as  a  "billion-dollar  Congress"  the  Speaker  retorted 
that  it  was  a  billion-dollar  country. 

From  the  last  years  of  the  nineteenth  century  a  different  con-  increased 
dition  has  existed.    The  Spanish-American  War  and  the  conse-  jSutSes*" 
quent  changed  position   of  the  United  States  in  world  affairs 
entailed  large  appropriations.  The  demand  for  an  increased  navy 
and  a  larger  army  caused  the  appropriations  for  these  branches 
to  increase  at  a  prodigious  rate.1 

In  addition  there  was  a  growing  tendency  to  lay  upon  the  Transfer  of 
federal  government  many  functions  which  had  been  or  should  functions  to 
be  performed  by  the  states.  Thus  the  federal  administration  of  eminent^" 
the  Pure  Food  Law,  made  necessary  by  the  laxity  of  the  author- 
ities of  certain  states,  took  three  millions  annually.  The  estab- 
lishment of  the  Bureau  of  Mines,  which  operates  in  only  a  frac- 
tion of  the  states,  required  the  establishment  of  another  bureau, 
which  makes  increasing  demands  upon  the  federal  treasury.  The 
whole  movement  towards  conservation,  and  the  huge  appropria- 
tions carried  in  the  Agricultural  Bill,  and  the  shocking  extrava- 
gance of  the  River  and  Harbor  and  Public  Buildings  bills  are 
only  a  few  examples  which  show  the  increasing  demands  upon 
the  treasury  for  the  performance  of  functions  naturally  belonging 
to  the  states.  Thus,  while  the  average  annual  expenditure  from 
1878  to  1885  was  about  two  hundred  and  ninety-four  million 
dollars,  the  average  from  1898  to  1905  was  six  hundred  and  fifty 
million  dollars,  and  the  grand  total  of  all  annual  and  permanent 
appropriations  for  1909  was  over  a  billion.2 

The  appropriation  of  such  vast  sums  should  be  according  to 
some  system  which  would  require  some  connection  between 
the  revenues  and  expenditures  and  fix  the  responsibility  some- 
where or  upon  someone.  Such,  however,  is  not  the  case. 

1  In  1897  these  appropriations  amounted  to  about  sixty-one  million  dollars,  in 
1910  to  over  two  hundred  and  forty-one  millions,  an  increase  of  300  per  cent. 

2  The  total  appropriation  made  by  Congress  was,  in   1890,  more  than  two 
hundred  and  eighteen  million  dollars;    in  1900,  more  than  four  hundred  and 
sixty  millions;   in  1910,  nearly  six  hundred  and  fifty  millions;   and  in  1916,  six 
hundred  and  seventy-eight  millions. 


4/0    THE  GOVERNMENT  OF  THE  UNITED  STATES 

SOURCES  OF  DEMANDS  FOR  APPROPRIATIONS1 

1.  The  first  demand  for  appropriations  comes  from  the  esti- 
mates transmitted  by  the  Secretary  of  the  Treasury  at  the  begin- 
ning of  each  session  of  Congress.    By  statute  each  executive 
department  must  transmit  to  the  Secretary  of  the  Treasury,  on 
or  before  the  fifteenth  of  October,  the  estimates  for  his  depart- 
ment.  The  Secretary  of  the  Treasury  is  then  required  to  arrange 
these  estimates  so  that  they  conform  to  the  last  appropriation  act, 
and  transmit  the  same  to  Congress.    In  so  doing  he  acts  in  a 
purely  ministerial  capacity  and  has  no  power  to  alter  the  estimates 
given  him  by  the  heads  of  the  various  departments.2     These 
estimates  thus  lack  the  strength  which  a  well-matured  and  corre- 
lated budget  would  have.    Each  stands  upon  its  own  independent 
basis.    Therefore  each  department,  fearing  it  will  not  obtain  as 
much  as  it  desires,  is  tempted  to  ask  for  more  than  it  can  eco- 
nomically use.3    In  1909  some  Improvement  was  made  by  the 
passage  of  a  statute  4  which  directed  the  Secretary  of  the  Treasury 
to  transmit  the  estimates  to  the  president  whenever  they  should 
exceed  the  estimated  revenue,  in  order  that  the  president  might 
advise  Congress  how  the  estimates  might  be  reduced  with  the 
least  detriment  to  the  service.    President  Taft  went  even  further 
and  directed  the  heads  of  his  departments  to  reduce  the  esti- 
mates to  the  lowest  possible  figures.    This  movement  may  be 
the  beginning,  small  though  it  is,  of  a  better  system. 

2.  A  second  set  of  estimates  transmitted  by  the  Secretary  of 
the  Treasury  are  known  as  the  supplementary  estimates.    These 
are  sent  to  Congress  in  an  almost  steady  stream  throughout  the 
session.  They  include  both  large  and  small  amounts,  from  impor- 
tant changes  in  policy,  like  Secretary  McAdoo's  revised  estimates 

1  See  H.  J.  Ford,  The  Cost  of  our  National  Government,  pp.  19  et  seq. 

2  When  John  Sherman  was  Secretary  of  the  Treasury  he  attempted  to  obtain 
such  authority,  in  order  to  make  the  estimates  correspond  with  estimated  revenue, 
but  in  this  he  was  unsuccessful.   No  cabinet  officer  would  yield  to  a  colleague, 
nominally  of  equal  rank,  the  power  to  curtail  his  estimates  and  determine  the 
amount  he  thought  necessary  for  the  operation  of  his  department. 

8  See  statement  of  Congressman  Tawney,  chairman  of  the  Committee 
on  Appropriations,  in  H.  J.  Ford,  The  Cost  of  our  National  Government, 
Appendix  B. 

4  March  4,  1909,  Stat.  at  Large,  Vol.  XXXV,  p.  1027,  Sect.  7. 


FINANCE  471 

in  1917,  which  increased  those  he  previously  had  sent  by  nearly 
ten  billions,  to  three  dollars  and  fifty  cents  for  a  tire  of  a  bicycle 
used  by  a  messenger  of  the  Court  of  Claims  in  1908. 

3.  The  third  demand  for  appropriations  comes  from  the  judg-  judgments 
ments  of  the  Court  of  Claims,  which  are  transmitted  by  the 

clerk  of  that  court.  The  Court  of  Claims  unlike  other  courts 
has  no  authority  to  enforce  its  judgments  and  must  depend 
upon  congressional  appropriations.  These  cannot  be  estimated 
but  depend  upon  the  decision  of  the  cases  before  the  court. 

4.  A  demand  for  appropriations  also  comes  from  the  army  surveys  for 
engineers  who  have  been  directed  by  concurrent  resolutions  to 

make  surveys  to  serve  as  the  foundation  for  future  appropria- 
tions for  the  improvement  of  rivers  and  harbors.  Since  these 
surveys  are  ordered  by  concurrent  instead  of  joint  resolutions, 
they  are  not  passed  upon  by  the  president,  nor  can  they  be 
estimated  for  by  any  department,  nor  are  they  included  in  the 
estimates  transmitted  by  the  Secretary  of  the  Treasury. 

5.  The  appropriating  committees  are  also  expected  to  provide  Expenditures 

,       ,      .  ,  .  A  _.  authorized 

for  the  expenditures  authorized  during  the  session.  These  by  current 
expenses  are  always  uncertain  and  cannot  be  estimated  for.  legisl) 
They  include  not  merely  the  cost  of  carrying  on  the  govern- 
ment as  authorized  by  law  but  also  appropriations  for  the 
enlargement  of  the  various  departments  and  the  extension  of 
the  work  in  accordance  with  the  legislation  of  Congress.  Some- 
times a  department  recommends  certain  legislation  for  the  sake 
of  economy  and  prepares  its  estimates  accordingly,  but  Congress 
may  refuse  to  make  the  necessary  changes  in  the  law.  Thus 
the  estimates  for  the  Post-Office  Department  for  1916  were 
over  nine  million  dollars  less  than  for  the  previous  year.  But 
Congress  refused  the  necessary  authority  to  make  the  changes 
asked  for  and  appropriated  twenty-seven  millions  more  than 
had  been  estimated.  In  addition,  numerous  bills  of  all  sorts  are 
introduced  authorizing  expenditures.  In  some  instances  they 
are  gathered  together  in  great  omnibus  bills,  "  pork  barrels  "  as 
they  are  called,  in  which  each  member  is  supposed  to  obtain 
an  appropriation  for  his  district.  The  more  notorious  of  these 
bills  are  the  River  and  Harbor  Bills,  the  Pension  Bill,  and  the 
Public  Building  Bill. 


472    THE  GOVERNMENT  OF  THE  UNITED  STATES 

It  is  impossible  to  get  any  correlation  or  control,  or  to  make 
anyone  responsible  for  these  estimates  coming  from  such  vari- 
ous sources.  Each  department,  each  bureau,  each  locality,  eacl 
individual  is  allowed  to  make  his  demand  upon  Congress  an< 
to  trust  to  political  influence  to  obtain  some  portion  of  the 
amount  demanded. 

PROCEDURE  ON  APPROPRIATION  BILLS 

Bad  as  the  system  of  estimating  is,  the  system  of  considering 
these  estimates  is  even  worse.   The  Committee  on  Appropriations 
itself  is  responsible  for  six  bills.1    The  seven  other  committe< 
having  power  to  report  appropriations   frame  their  own  bills 
independently  alike  of  the    Committee   on   Ways  and   Means 
and  the  Committee  on  Appropriations.    It  is  the  practice  of  the 
various  committees  to  call   the   heads   of  the   departments   01 
experts  from  each  department  before  them  and  to  inquire  coi 
cerning  the  necessities  of  the  estimates.     These   hearings  are 
printed  and  serve  as  a  guide  not  merely  for  the  committee  bi 
for  the  members  when  the  bill  is  considered  in  the  House.    It 
is  almost  certain  that  the  committee  will  reduce   the   amount 
asked  for ;  in  fact,  the  departments  make  allowance  for  this  ii 
their  estimates.    Thus,  the  estimates  for  1909  amounted  to  ove 
eight  hundred  and  forty-three  million  dollars,  and  the  committee 
reported  to  the  House  seven  hundred  and  forty  million  dollan 
—  a  large  reduction  seemingly  in  the  interest  of  economy. 

The  chairmen  of  the  committees  reporting  the  bills  to  th( 
House  explain  the  general  principles,  while  the  senior  minorit 
member  criticizes  them,  usually  on  the  score  of  extravagance. 
Several  hours  of  general  debate  are  allotted  before  consideratioi 
in  the  Committee  of  the  Whole.   Generally  this  time  is  occupiec 
not  in  debate  but  in  making  political  speeches  on  any  subjec 
which  a  congressman  wishes  to  discuss.    In  the  Committee  oi 
the  Whole  the  bills  are  considered  under  the  five-minute  rule, 
and  each  clause  is  subject  to  discussion  and  amendment.     It 
here  that  the  champions  of  economy  suffer  the  most.    The  presi- 
dent may  direct  a  reduction  in  the  estimates,  and  the  department 

1  Legislative,  Executive,  and  Judicial;  District  of  Columbia  Appropriations. 
Fortifications ;  Pensions  ;  Sundry  Civil  Appropriations  ;  all  deficiency  bills. 


FINANCE  473 

may  comply ;    the   appropriating  committees   may  still   further  committee 
reduce  these  amounts,  but  the  House   and   Senate  are  almost 
always  sure  to  increase  them.    No  one  member  likes  to  incur  creased 
the  hostility  of  another  by  voting  against  the  appropriation  in 
which  that  member  is  interested.    Too  often  members  agree  to 
use  their  influence  to  help  each  other  obtain  their  desires.    This 
is  called  "  log  rolling,"  a  practice  most  difficult  to  check  and  impos-  "Log 
sible  to  prevent.  Desire  for  political  influence  and  fear  of  reprisals  T0llmg 
keep  the  members  silent.    Thus  the  seven  hundred  and  forty 
million  dollars  reported  to  the  House  in  1909  had  increased  to 
seven  hundred  and  forty-three  million  dollars  when  it  finally 
passed  the  House. 

The  bill  then  goes  to  the  Senate  committee  which  has  juris-  consideration 
diction  over  it.    The  departments  and  the  individuals  who  have 
suffered  cuts  at  the  hands  of  the  House  make  their  appeal  to 
the    Senate    committees.     The   committees  of  the   Senate  are 
usually  generous.    Thus,  in  1909  the  seven  hundred  and  forty-  senate 
three  million  dollars  appropriated  by  the  House  was  reported  to 
the  Senate  as  eight  hundred  and  four  million  dollars.   This  was 
only  about  forty  million  less  than  was  asked   for  by  the  esti- 
mates, but  sixty-four  million  more  than  was  reported  to  the  House 
and  over  sixty  million  more  than  was  granted  by  the  House. 
When  the  bills  are  considered  in  the  Senate  even  the  generous  Recommen- 
amounts  reported  by  the  committees  are  usually  increased.   There  further  in-11 
are  several  reasons  for  this.  The  Senate,  owing  to  the  long  terms  ^senate 
of  its  members,  is  not  so  sensitive  to  immediate  public  criticism, 
and  hence  is  apt  to  be  more  generous.    Its  rules,  also,  allowing 
for  unlimited  debate,  give  opportunity  for  an  importunate  senator 
to  obtain  his'  demand  under  the  threat  of  wrecking  the  whole 
bill.    On  the  contrary,  in  a  few  exceptional  cases  this  power  of 
unlimited  debate  has  led  to  a  reduction  or  a  defeat  of  the  meas- 
ure.   Thus   eight  hundred  and  four  million  dollars,  which  was 
reported,  grew  to  eight  hundred  and  seventeen  million  dollars  in 
the  passage  through  the   Senate.     In  the  conference  which  is 
necessary  to  reconcile  the  differences  between  the  Houses,  the  in  conference 
Senate  usually  gains  a  large  portion  of  the  increases  it  has  asked 
for.    This  is  for  two  reasons.    The  first  is  found  in  the  nature 
of  the  Senate  rules,  which,  as  just  pointed  out,  in  allowing  for 


474    THE  GOVERNMENT  ,OF  THE  UNITED  STATES 


Evils  of  the 

present 

system 


Suggested 
reforms 


unlimited  debate  give  the  opportunity  to  wreck  the  measure, 
especially  if  the  end  of  the  session  be  near.  The  second  reason 
may  be  suspected  to  be  the  controlling  one  for  the  surrender 
of  the  House.  Economy  is  unpopular  politically,  and  it  may  be 
suspected  that  even  some  of  its  strongest  advocates  in  the  House 
are  willing  if  not  glad  to  allow  some  of  the  senatorial  increases. 
Their  yielding  frequently  enables  them  to  use  appropriations  to 
strengthen  their  position  in  their  districts. 

Viewing  the  system  as  a  whole  it  seems  an  almost  unmitigatedly 
bad  one.  (i)  There  is  no  responsibility  for  a  balance  (a)  between 
the  revenues  and  expenditures  nor  (b)  between  the  various  depart- 
ments. (2)  There  is  no  compulsion  exerted  anywhere  on  the 
side  of  economy;  and  (3)  there  is  everywhere  every  incentive 
for  extravagance.  As  Representative  Gillett  said  in  1905, 
"  There  is  no  selfish  interest  on  the  side  of  economy  while  every 
member  has  pressure  from  home  for  financial  expenditure." 
•  There  are  various  methods  by  which  this  procedure  might  be 
reformed.  But  until  1909  little  serious  attention  was  given  to  it, 
and  few  attempts  were  made  to  provide  remedies.  Protests  of 
the  chairmen  of  the  Committee  on  Appropriations  and  sarcastic 
remarks  by  the  minority  members  were  the  only  signs  of  interest. 
Senators  and  representatives  alike  were  more  interested  in 
improving  their  political  positions  than  in  economy.  Three 
methods,  however,  have  been  seriously  discussed  and  one  has 
been  attempted.  These  are  the  executive  budget,  a  congressional 
committee  on  revenues  and  expenditures,  and  a  single  committee 
on  appropriations. 

ATTEMPTS  AT  REFORM 

i.  Plans  for  an  executive  budget  1  In  1909  President  Taft 
asked  for  and  received  the  sum  of  one  hundred  thousand  dollars 
for  the  purpose  of  inquiring  into  the  operation  of  executive 
departments.  The  Commission  of  Economy  and  Efficiency  was 
organized,  which  prepared  new  forms  for  the  estimates  so  that 
they  should  conform  to  the  budget  idea.  This  commission 
reported  the  need  of  and  advised  the  adoption  of  an  executive 

1  F.  A.  Cleveland,  "  The  Federal  Budget,"  in  Academy  of  Political  Science 
Proceedings,  Vol.  Ill,  No.  2,  p.  117. 


FINANCE  475 

budget.1  The  commission  also  recommended  that  the  executive 
should  prepare  and  submit  to  Congress  each  year  a  prospectus 
of  the  work  to  be  undertaken,  with  an  estimate  of  the  cost.  This 
the  president  proceeded  to  do.  Unfortunately  the  majority  of  the 
House  was  opposed  to  the  president  politically,  while  the  Senate 
was  controlled  by  a  coalition  of  Democrats  and  Progressives.  In 
order  to  thwart  the  president,  who  might  obtain  some  political 
advantage  from  his  reform,  Congress  inserted  in  the  Legislative, 
Executive,  and  Judicial  Appropriation  Bill  the  proviso  that  the 
estimates  of  the  appropriation  for  the  expenses  of  the  govern- 
ment should  be  prepared  and  submitted  to  Congress  "only  in 
the  form  and  at  the  time  now  required  by  law,  and  in  no  other 
form  and  at  no  other  time."  The  law  required  that  the  Secre- 
tary of  the  Treasury  should  arrange  the  estimates  as  the  appro- 
priations had  been  arranged  in  the  previous  appropriation  bill. 
Thus  the  majority  hoped  to  head  off  the  attempt  to  force  an 
executive  budget. 

Nevertheless,  President  Taft  believed  it  was  within  his  pre-  Failure  of 
rogative  to  order  the  departments  to  prepare  estimates  to  be  sub- 
mitted  to  him  as  he  should  direct.  Certainly  he  had  power  to 
submit  any  message  on  any  subject  at  any  time  to  Congress. 
Unfortunately,  the  new  estimates  were  not  ready  until  about 
February  and  were  not  submitted  to  Congress  until  the  end  of 
the  month.  They  were  referred  to  the  Committee  on  Appro- 
priations, which  had  finished  its  work  and  ordered  them  to  be 
printed.  Five  days  later  President  Taft  retired. 

Theoretically,  the  budget  system   is  the  only  possible  one.  Advantages 
The  United  States  is  the  only  great  nation  which  is  operated  system6 
without  a  budget.    It  would  seem  axiomatic  that  the  appropriating 
body  should  have  the  record  of  the  past  and  the  plans  and  esti- 
mates of  the  future,  before  it  could  ever  hope  either  to  fix  the 
revenue  or  to  grant  the  appropriations.   But,  as  has  been  shown, 
taxes  are  usually  levied  for  economic  rather  than  financial  rea- 
sons, and  appropriations  are  made  to  promote  personal  or  party 
advantage  rather   than  the  efficiency  of   the    government.    In 
order  to  operate  a  budget  successfully  it  would  be  necessary  to 

1  House  Document  854,  62d  Cong.,  2d  Sess.,  p.  575.   Transmitted  by  a 
special  message  of  the  president,  June  27,  1912. 


476    THE  GOVERNMENT  OF  THE  UNITED  STATES 

alter  most  radically  the  political  habits  and  methods  of  most 
public  men.1  It  should  be  pointed  out,  moreover,  that  in  Eng- 
land and  France  the  second  chambers  do  not  alter  money  bills, 
while  in  Switzerland  and  Germany  the  executive  is  listened  to 
with  more  respect.  It  is  almost  beyond  the  bounds  of  imagina- 
tion to  think  of  the  Senate  relinquishing  its  constitutional  right 
to  amend  and  alter  both  appropriating  and  revenue  bills.  Nor  is 
it  altogether  likely  that  Congress,  with  its  present  system  of 
committees,  will  enthusiastically  welcome  a  budget  prepared  by 
the  executive.  Such  a  one  might  be  submitted,  but  it  would  be 
subjected  to  congressional  alteration  until  its  original  form  would 
be  unrecognizable.  Nevertheless,  with  the  constantly  increasing 
expenditures,  greatly  augmented  by  the  World  War,  Congress 
has  been  driven  to  unwilling  regeneration,  and  the  House  in 
1919  passed  and  sent  to  the  Senate  a  budget  bill.  In  the  mean- 
time the  budget  idea  stands  as  a  counsel  of  perfection  which  has 
been  successfully  operated  in  other  countries. 

2.  A  committee  on  estimates  and  expenditures?  In-  1913 
Representative  Sherley  proposed  that  the  chairmen  and  three 
ranking  majority  members  and  the  ranking  minority  members 
of  the  Committee  on  Ways  and  Means  and  the  Committee  on 

... 

Appropriations,  together  with  the  chairmen  and  ranking  minority 
members  of  the  Committees  on  Rules,  Agriculture,  Foreign,  Mili- 
tary, Naval,  and  Indian  Affairs,  Post  Office  and  Post  Roads,  and 
Rivers  and  Harbors,  form  a  committee  on  estimates  and  expendi- 
tures. This  committee  should  report  to  the  House  the  probable 
amount  of  revenue  available  and  apportion  it  to  the  several  com- 
mittees empowered  to  report  appropriations.  When  this  report 
should  be  accepted  by  the  House  it  was  to  become  binding  upon 
all  committees,  and  any  committee  exceeding  the  amount  could 
be  forced  to  reconsider  its  appropriations  upon  a  point  of  order 
raised  by  a  single  member.  There  are  manifest  advantages  in 
this  proposal.  It  joins  in  one  committee  representatives  of  the 
revenue-raising  and  revenue-spending  committees.  It  thus  has 

1  See  a  most  suggestive  analysis  of  political  conditions  in  H.  J.  Ford,  The 
Cost  of  our  National  Government,  chaps,  vi,  vii. 

2  See  an  address   by  Representative  Sherley,  February  28,  1913,  in  Con- 
gressional Record,  Vol.  XLIX,  Part  V,  pp.  4349-4355. 


FINANCE  477 

» 

one  of  the  elements  sought  in  a  budget  system.  A  second 
feature  sought  in  a  budget  system  is  found  in  that  it  compels  a 
survey  by  a  single  committee  of  the  needs  of  all  the  departments 
and  all  the  appropriations  likely  to  be  made.  Being  an  ex-officio 
committee  it  is  superior  to  the  old  single  Committee  on  Appro- 
priations as  it  was  constituted  from  1865  to  1885.  Furthermore, 
it  submits  to  the  House  not  individual  appropriations  but  a  com- 
prehensive scheme  for  appropriations.  The  House  votes  totals 
rather  than  details,  thus  doing  away  with  some  of  the  danger  of 
11  log  rolling."  Finally,  it  leaves  to  committees  which  presumably 
are  better  informed  the  distribution  of  the  amount  allotted  to 
them.  In  spite  of  the  excellences  of  this  scheme  and  the  fact 
that  it  was  received  with  loud  applause,  nothing  has  been  done 
to  make  it  effective. 

3.  A  single  committee  on  appropriations}-  Later,  in  the  Modification 
same  year,  Representative  Fitzgerald,  chairman  of  the  Committee  Ji 
on  Appropriations,  made  an  elaborate  address  in  which  he 
reviewed  the  expenditures  and  the  history  of  the  present  system 
and  proposed  alterations.  His  idea  was  to  return  to  the  single 
committee  of  1865  to  1885,  increasing  it  to  include  the  chairmen 
of  the  Committees  on  Naval,  Military,  Foreign,  and  Indian 
Affairs,  Post  Office  and  Post  Roads,  and  Agriculture.  To  this 
committee  was  to  be  given  the  appropriation  of  the  revenue  for 
the  support  of  the  government,  including  the  improvement  of 
rivers  and  harbors.  No  appropriation  should  be  made  except 
in  a  general  appropriation  bill,  and  no  appropriation  in  the 
bill  should  be  in  order  unless  it  was  previously  authorized  by 
law.  Any  Senate  amendment  obnoxious  to  this  rule  should 
not  be  agreed  to  on  the  part  of  the  managers  of  the  House 
Conference  'Committees  unless  specific  authority  should  be 
given  by  a  separate  vote  on  each  amendment.  In  his  address 
Mr.  Fitzgerald  criticized  both  the  budget  scheme,  asserting  that 
it  was  unnecessary,  and  plans  for  a  committee  on  estimates 
and  expenditures,  holding  that  the  lack  of  time  made  it  im- 
practical. He  believed  that  his  plan  had  the  merits  of  con- 
centration, dispatch,  and  coordination.  He,  moreover,  pointed  out 

1  See  address  by  Representative  Fitzgerald,  June  24,  1913,  in  Congressional 
Record,  Vol.  L,  Part  III,  pp.  2154-2162. 


478    THE  GOVERNMENT  OF  THE  UNITED  STATES 

that,  although  he  was  depriving  various  committees  of  their 
much-prized  power  to  report  appropriations,  he  was  still  leaving 
them  valuable  and  useful  functions.  His  scheme  has  the  merit 
that  it  contains  less  novelty  than  the  other  plans  for  reform  and 
is  but  a  modification  of  a  system  which  was  in  operation  for 
twenty  years.  It  lacks,  however,  the  advantages  of  the  Taft 
budget  plan  and  the  Sherley  committee  plan  in  that  it  fails  to 
coordinate  the  revenue-producing  and  revenue-spending  com- 
mittees. Furthermore,  it  requires  a  greater  sacrifice  of  political 
influence  from  the  other  committees  than  either  of  the  other 
plans.  It  would  undoubtedly  make  for  economy,  and  at  the 
same  time  raise  the  Committee  on  Appropriations  to  a  com- 
manding position  politically,  making  its  chairman  the  most 
important  man  in  the  House. 

PAYMENTS  AND  AUDIT 

Payments  are  made  only  as  the  result  of  appropriations  of 
Congress.  These  statutes  may  be  .classified  as  (i)  permanent,  — 
such  as  appropriations  for  the  interest  and  principal  of  the  public 
debt ;  (2)  continuing,  —  such  as  those  of  the  construction  of 
public  works,  like  the  Panama  Canal  and  some  river  and  harbor 
improvements  ;  and  (3)  annual,  —  such  as  appropriation  bills  for 
all  branches  of  the  government  service.  The  payments  are  made 
by  the  Treasurer  of  the  United  States  and  subtreasurers  or  their 
agents  upon  warrants  of  the  proper  disbursing  officers  approved 
by  the  proper  auditors  and  comptrollers. 

The  system  of  auditing  is  involved  and  technical.  In  general 
the  departments  having  the  greatest  expenditures1  are  assigned 
auditors,  while  a  single  auditor  serves  for  the  expenses  of  the  other 
departments  where  the  expenditures  are  not  so  heavy.  It  is  the 
duty  of  these  auditors  to  pass  upon  the  warrants  of  the  disbursing 
officers  and  see  that  the  account  or  claim  against  the  government 
is  submitted  in  proper  form.  Appeals  from  their  decisions  lie 
to  the  Comptroller  of  the  Treasury.  The  Comptroller  of  the 
Treasury,  although  attached  to  the  treasury  department,  is 
appointed  by  the  president  and  holds  a  semi-independent 

1  Treasury,  War,  Interior,  Navy,  and  Post  Office,  although  this  department 
is  less  dependent  upon  the  Secretary  of  the  Treasury  than  the  others. 


FINANCE  4;9 

position  of  a  quasi-judicial  character.  It  is  his  duty  to  pass 
upon  all  appeals  from  the  decision  of  the  auditors,  .and  to  ad- 
vise the  disbursing  officers  in  determining  the  validity  of  pay- 
ments. His  decisions  are  not  reviewable  by  the  Secretary  of  the 
Treasury,  but  appeal  may  be  entertained  by  the  appropriate  court 
of  law.  Within  his  province  the  Comptroller  is  independent  even 
of  the  Attorney-General  upon  questions  of  law.  Nevertheless, 
like  all  officers  except  the  judges,  he  is  liable  to  removal  by  the 
president,  and  is  thus,  like  them,  subject  to  the  directions  of 
the  president.  His  position,  although  involving  judicial  duties, 
is  not  so  carefully  protected  from  political  influence  as  is  that 
of  the  Comptroller  in  England,  who  in  the  performance  of  similar 
duties  receives  the  same  protection  as  is  given  to  the  judges. 


CHAPTER  XIX 


The  govern- 
ment slow -to 
appreciate 
and  use  this 
power 


Power  to 
regulate  com- 
merce limited 
only  by  the 
Constitution 


THE  REGULATION  OF  COMMERCE 

THE  POWER  TO  REGULATE  FOREIGN  AND  INTERSTATE 
COMMERCE 

The  right  to  regulate  commerce  stands  second  in  the  list  of 
powers  granted  to  Congress.  Indeed,  while  the  right  to  raise 
money  might  possibly  be  implied,  the  right  to  control  commerce 
must  depend  upon  some  specific  grant.  The  disastrous  experi- 
ence of  the  Confederation  when  both  foreign  and  interstate  com- 
merce were  at  the  mercy  of  state  jealousy  and  avarice  convinced 
the  convention  of  1787  that  national  regulation  was  absolutely 
essential.  Although  adopted  as  the  result  of  a  compromise  and 
subject  to  several  restrictions,  the  power  contained  in  the  grant 
has  proved  sufficient  for  the  unexpected  development  and  expan- 
sion £f  commerce  and  industry.  The  government  was  slow  to 
appreciate  the  extent  and  the  significance  of  this  power.  It  was 
not  until  1824  that  the  extent  of  the  power  was  pointed  out  by 
the  Supreme  Court  in  Gibbons  v.  Ogden,  and  during  the  next 
sixty  years  the  grant  was  more  generally  invoked  to  prevent  state 
encroachments  than  to  substantiate  federal  activity.  Not  until 
1887  did  Congress  attempt  in  any  comprehensive  way  to  utilize 
affirmatively  the  authority  given  it  over  interstate  commerce,  and 
this  attempt  was  hardly  made  efficacious  until  1906. 

In  1824  Marshall,  in  his  opinion  in  the  case  of  Gibbons  v. 
Ogden^  pointed  out  the  extent  of  the  power  in  these  words  : 
lt  The  power  to  regulate  commerce,  like  all  other  powers  vested 
in  Congress,  is  complete  in  itself,  may  be  exercised  to  its  utmost 
extent,  and  acknowledges  no  limitations,  other  than  are  prescribed 
in  the  Constitution." 

Therefore,  no  assumed  or  additional  restriction  drawn  from 
conditions  existent  in  1787  or  the  intent  of  the  convention  can 


1  9  Wheat,  i,  196. 
480 


THE  REGULATION  OF  COMMERCE  481 

limit  or  control  the  extent  of  this  power.  This  was  clearly  asserted  Power  not 
in  1889  when  the  court  used  these  words  :   "  The  reasons  which 
may  have  caused  the  framers  of  the  Constitution  to  repose  the 
power  to  regulate  interstate  commerce  in  Congress  do  not,  how-  stitution 
ever,  affect  or  limit  the  extent  of  the  power  itself."  1 

Thus,  subject  to  the  restrictions  contained  in  the  Constitution  Development 
itself,  Congress  has  full  and  absolute  power  to  adopt  any  means  mercfaijo^er 
to  regulate  commerce  for  any  purpose  that  it  shall  deem  advisable. 
To  illustrate  by  anticipation,  it  will  be  seen  that  under  this  clause 
Congress  has  not  merely  checked  state  interference  and  provided 
for  equality  in  transportation,  but  has  utilized  this  power  to  ac- 
complish, by  federal  legislation,  economic,  industrial,  social,  and 
moral  reforms.    In  other  words,  by  means  of  the  authority  to 
regulate  commerce  Congress  has  been  able  to  enter  the  vast  field 
of  the  police  power  from  which  it  was  otherwise  debarred. 

The  present  conception  of  the  term  "  commerce  "  is  the  result  what  is 
of  judicial  interpretation  and  definition.     From  the  very  early  ° 
years  of  the  government  the  court  has  been  liberal  in  its  inter- 
pretation of  this  word.    Thus,  in  1827,  Marshall  said,  "Com-  Marshall's 
merce  is  intercourse"  ;  while  in  1875  Chief  Justice  Field  gave 
the  following  more  ample  definition  : 

Commerce  is  a  term  of  the  largest  import.  It  comprehends  inter-  Acomprehen- 
course  for  the  purpose  of  trade  in  any  and  all  its  forms,  including 
the  transportation,  purchase,  sale,  and  exchange  of  commodities  be- 
tween the  citizens  of  our  country  and  the  citizens  or  subjects  of  other 
countries,  and  between  the  citizens  of  different  states.  The  power  to 
regulate  it  embraces  all  the  instruments  by  which  such  commerce  may 
be  conducted.2 

In  1877  the  court  thus  summarized  the  constantly  increasing 
application  of  the  term  : 

The  powers  thus  granted  are  not  confined  to  the  instrumentalities  of  Expansion  of 
commerce,  or  the  postal  service  known  or  in  use  when  the  Constitution   with  cnang_ 
was  adopted,  but  they  keep  pace  with  the  progress  of  the  country,  and  ing  conditions 
adapt  themselves  to  the  new  developments  of  time  and  circumstances. 
They  extend  from  the  horse  with  its  rider,  to  the  stage  coach,  from  the 

1  Addyston  Pipe  and  Steel  Co.  v.  United  States,  175  U.S.  211,  228. 

2  Welton  v.  Missouri,  91  U.  S.  275,  280. 


482    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Commercial 
power  covers 
agents  and 
means  of 
commerce  as 
well  as  thing 
transported 


What  is  not 
commerce : 


(i)  Bills  of 
exchange 


sailing  vessel  to  the  steamboat,  from  the  coach  and  steamboat  to  the 
railroad,  and  from  the  railroad  to  the  telegraph,  as  these  new  agencies 
are  successively  brought  into  use  to  meet  the  demands  of  increasing 
population  and  wealth.1 

Messages  by  telephone  and  wireless  telegraph  are  also  included 
within  this  definition,  in  short,  anything  that  involves  transporta- 
tion of  persons  or  things,  tangible  or  intangible.  "  Transporta- 
tion is  essential  to  commerce,  or  rather  it  is  commerce  itself," 
said  the  court  in  Railroad  Co.  v.  tfusen.2 

The  regulation  of  commerce  extends  not  merely  to  the  thing 
transported  and  the  means  by  which  it  is  transported  but  also 
to  the  persons  engaged  in  the  act  of  transportation.  Thus,  not 
only  has  the  power  of  Congress  to  compel  the  use  of  safety 
appliances  on  railroads  been  upheld,  but  legislation  concerning 
the  hours  of  labor  and  the  relations  of  the  employees  to  the 
employers  have  been  sustained  on  the  ground  that  the  employers 
were  agencies  of  commerce.  In  sustaining  the  second  Employers' 
Liability  Act  the  court  used  these  words : 

Among  the  instrumentalities  and  agents  to  which  the  power  extends 
are  the  railroads  over  which  transportation  from  one  state  to  another  is 
conducted,  the  engines  and  cars  by  which  such  transportation  is  effected, 
and  all  who  are  in  any  wise  engaged  in  such  transportation,  whether  as 
common  carriers  or  as  their  employees.3 

On  the  other  hand,  certain  well-recogmz'ed  commercial  trans- 
actions do  not  fall  within  the  definition.  For  example,  the  court 
has  held  that  bills  of  exchange  were  not  commerce,  saying : 

A  bill  of  exchange  is  neither  an  export  nor  an  import.  .  .  .  Now  the 
individual  who  uses  his  money  and  credit  in  buying  and  selling  bills  of 
exchange,  and  who  thereby  realizes  a  profit,  may  be  taxed  by  a  state 
in  proportion  to  his  income,  as  other  persons  are  taxed,  or  in  the  form 
of  a  license.  He  is  not  engaged  in  commerce,  but  in  supplying  an 
instrument  of  commerce.  He  is  less  connected  with  it  than  the 
shipbuilder,  without  whose  labor  foreign  commerce  could  not  be 
carried  on.4 

1  Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  96  U.  S.  i,  9. 

2  95  U.  S.  465,  470. 

8  Mondous  v.  JV.  Y.,  N.H.  6s  Hart.  R. R.  Co.,  223  U.S.  i,  47. 
4  Nathan  v.  Louisiana,  8  Howard,  73,  81. 


THE  REGULATION  OF  COMMERCE  483 

By  a  similar  reasoning  fire  insurance,  marine  insurance,  and  (2)  insurance 
life  insurance  have  been  declared  not  to  be  commerce  but  inci- 
dents of  commercial  transactions.    This  interpretation  is  subject, 
however,  to  considerable  criticism,  and  is  more  typical  of  the 
nineteenth  than  the  twentieth  century.1 

Although  commerce  is  intercourse,  transportation,  and  trade,   (3)  Manufac- 
it  does  not  include  manufacture.    This  was  emphatically  stated 
by  the  court  in  1 894  as  follows : 

.  .  .  The  fact  that  an  article  is  manufactured  for  export  to  another 
state  does  not  make  it  an  article  of  interstate  commerce,  and  the  intent 
of  the  manufacturer  does  not  determine  the  time  when  the  article  or 
product  passes  from  the  control  of  the  state  and  belongs  to  commerce.2 

THE  RELATION  BETWEEN  THE  POWER  OF  CONGRESS  AND  THE 
POWER  OF  THE  STATES  TO  REGULATE  COMMERCE 

Although  the  power  to  regulate  commerce  is  granted  in  the  states  control 

.      .      ,  i   •      ^  -T-1  interstate 

widest  form,  it  is  not  exclusively  vested  in  Congress.    The  states  commerce 
still  may  exercise  and  must  exercise  some  measure  of  regulation 
over  commerce  within  their  borders.    The  attitude  of  the  court 
concerning  the  extent  to  which  state  regulation  of  commerce  may 
go  was  clearly  summarized  by  Justice  Brown  in  1893  as  follows : 

The  adjudications  of  this  court  with  respect  to  the  power  of  the 
states  over  the  general  subject  of  commerce  are  divisible  into  three 
classes.  First,  those  in  which  the  power  of  the  state  is  exclusive ; 
second,  those  in  which  the  states  may  act  in  absence  of  legislation  by 
Congress ;  third,  those  in  which  the  action  of  Congress  is  exclusive 
and  the  states  cannot  interfere  at  all. 

Theyfctf  class,  including  all  those  wherein  the  states  have  plenary  Exclusive 
power,  and  Congress  has  no  right  to  interfere,  concern  the  strictly 
internal  commerce  of  the  state,  and  while  the  regulations  of  the  state 
may  affect  interstate  commerce  indirectly,  their  bearing  upon  it  is  so 
remote  that  it  cannot  be  termed  in  any  just  sense  an  interference. 
Under  this  power,  the  states  may  authorize  the  construction  of  high- 
ways, turnpikes,  railways,  and  canals  between  points  in  the  same  state, 
and  regulate  the  tolls  for  the  use  of  the  same.  .  .  . 

1  See  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  II, 
pp.  636-638,  with  references  to  other  cases. 

2  United  States  v.  Knight,   156  U.S.  i,   13.    But  see  the  discussion  of  the 
Addyston  Pipe  decision,  p.  507. 


484    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Concurrent 
state  and 
federal 
jurisdiction 


Exclusive 

federal 

jurisdiction 


The  police 
power 


Extensively 
defined 


Congress  has  no  power  to  interfere  with  the  police  regulations 
relating  exclusively  to  the  internal  trade  of  the  states.  .  .  . 

Within  the  second  class  of  cases  —  those  of  what  may  be  termed 
concurrent  jurisdiction  —  are  embraced  laws  for  the  regulation  of 
pilots  :  .  .  .  quarantine  and  inspection  laws  and  the  policing  of  harbors : 
.  .  .  the  improvement  of  navigable  channels :  .  .  .  the  regulation  of 
wharfs,  piers,  and  docks :  the  .construction  of  dams  and  bridges  across 
the  navigable  waters  of  a  state :  .  .  .  and  the  establishment  of  ferries. 
...  As  a  matter  of  fact,  the  building  of  bridges  over  waters  dividing 
two  states,  is  now  usually  done  fry  congressional  sanction.  Under  this 
power  the  states  may  also  tax  the  instruments  of  interstate  commerce 
as  it  taxes  other  similar  property,  provided  such  tax  be  not  laid  upon 
the  commerce  itself. 

But  whenever  such  laws,  instead  of  being  of  a  local  nature  and  not 
affecting  interstate  commerce  but  incidentally,  are  national  in  their 
character,  the  nonaction  of  Congress  indicates  its  will  that  such  com- 
merce shall  be  free  and  untrammeled,  and  the  case  falls  within  the 
third  class  —  of  those  laws  wherein  the  jurisdiction  of  Congress  is 
exclusive.  .  .  .  Subject  to  the  exceptions  above  specified,  as  belonging 
to  the  first  and  second  classes,  the  states  have  no  right  to  impose 
restrictions,  either  by  way  of  taxation,  discrimination,  or  regulation, 
upon  commerce  between  the  states.1 

The  police  power  of  the  states  with  which  the  court  has 
declared  Congress  has  no  right  to  interfere,  have  been  briefly 
defined  by  the  court  as  those  powers  which  "  relate  to  the 
safety,  health,  morals  and  general  welfare  of  the  public."  2  More 
extensively  the  court  has  said  that  the  police  power  embraced 
every  law  "which  concerned  the  welfare  of  the  whole  people  of 
a  state,  or  any  individual  within  it ;  whether  it  related  to  their 
rights,  or  their  duties ;  whether  it  respected  them  as  men,  or  as 
citizens  of  the  state  ;  whether  in  their  public  or  private  relations  ; 
whether  it  related  to  the  rights  of  persons,  or  of  property  of  the 
whole  people  of  a  state,  or  of  any  individual  within  it ;  and  whose 
operation  was  within  the  territorial  limits  of  the  state,  and  upon 
the  persons  and  things  within  its  jurisdiction."  3 

1  Covington  and  Cincinnati  Bridge  Co.  v.  Kentucky,  154  U.S.  204,  209,  210, 


211,  212. 


2  Locknerv.  New  York,  198  U.S.  45,  53. 

3  New  York  v.  Milne,  n  Peters,  102,  139. 


THE  REGULATION  OF  COMMERCE  485 

Legislation  and  regulations  passed  in  accord  with  this  power  Bona  fide 
must  of  necessity  frequently  touch  upon  commerce  as  extensively  tionfma^ 
defined  by  the  court.    With  the  regulation   of  commerce  and  Jjjjj inter" 
trade  which  is  only  domestic  —  intrastate  commerce  —  Congress  commerce 
has  no  concern.    But  with  the  development  of  commercial  inter- 
course among  the  states  these  regulations  are  almost  of  necessity 
bound  to  interfere,  indirectly  with  interstate  or  foreign  commerce. 
The  court  has  therefore  said : 

...  If  the  action  of  the  state  legislature  were  a  bona  fide  exercise 
of  its  police  power,  and  dictated  by  a  genuine  regard  for  the  preserva- 
tion of  the  public  health  or  safety,  such  legislation  would  be  respected, 
though  it  might  interfere  indirectly  with  interstate  commerce.1 

But  as  Chief  Justice  Field  said,  "  there  is  great  difficulty  in 
drawing  the  line  precisely  where  the  commercial  power  of 
Congress  ends  and  the  power  of  the  state  begins."  2 

States  have  exercised  their  police  powers,  and  thereby  ^indi-  Limits  to 
rectly  affected  interstate  commerce  by  inspection  and  quarantine 
regulations.  These  regulations  have  been  closely  scrutinized  by 
the  court.  Where  they  were  obviously  bona  fide  inspection  laws 
for  the  purpose  of  protecting  the  inhabitants  of  the  state  they 
have  been  upheld.  But  a  state  has  not  been  allowed  "  under 
the  guise  of  exerting  its  police  powers  .  .  .  [to]  make  discrimi- 
•  nations  against  the  products  and  industries  of  some  of  the 
states  in  favor  of  the  products  and  industries  of  its  own  or  of 
other  states."  3  States  therefore  have  power  to  prevent  the  intro- 
duction of  "  .  .  .  articles  of  trade,  which,  on  account  of  their  exist- 
ing condition,  would  bring  in  and  spread  disease,  pestilence,  and 
death.  .  .  .  Such  articles  are  not  merchantable ;  they  are  not 
legitimate  subjects  of  trade  and  commerce.  They  may  be  rightly 
outlawed  as  intrinsically  and  directly  the  immediate  sources  and 
causes  of  destruction  to  human  health  and  life." 4  But  this 
should  be  clearly  remembered : 

It  has  never  been  regarded  as  within  the  legitimate  scope  of  inspec- 
tion laws  to  forbid  trade  in  respect  to  any  known  article  of  commerce, 

1  Austin  v.  Tennessee,  179  U.S.  343,  349. 

2  Bowman  v.  Chicago  &  Northwestern  R.R.  Co.,  125  U.S.  465,  506. 

3  Brimmer  v.  Rebman,  138  U.S.  78,  82. 

4  Bowman  v.  Chicago  6°  Arortkwestern  R.  R.  Co.,  125  U.S.  465,  489. 


486    THE  GOVERNMENT  OF  THE  UNITED  STATES 

irrespective  of  its  condition  and  quality  merely  on  account  of  its  intrinsic 
nature  and  the  injurious  consequences  of  its  use  or  abuse.1 

Prevention  of  fraud,  however,  is  within  the  legitimate  scope 
of  the  police  power.  Thus  the  court  upheld  a  Massachusetts 
law  prohibiting  the  sale  of  oleomargarine  colored  in  imitation  of 
butter,  upon  the  ground  that  it  was  within  the  proper  exercise' 
of  the  police  power  to  prevent  fraud.2 

But  later,  in  reviewing  its  own  decisions  regarding  oleo- 
margarine, the  court  said  : 

In  the  execution  of  its  police  powers  we  admit  the  right  of  the  state 
to  enact  such  legislation  as  it  may  deem  proper,  even  in  regard  to 
articles  of  interstate  commerce,  for  the  purpose  of  preventing  fraud,  or 
deception,  in  the  sale  of  any  commodity  and  to  the  extent  that  it  may 
be  fairly  necessary  to  prevent  the  introduction  or  sale  of  an  adulterated 
article  within  the  limits  of  the  state.  But  in  carrying  out  its  purpose 
the  state  cannot  absolutely  prohibit  the  introduction  within  the  state  of 
an  article  of  commerce  like  pure  oleomargarine.8 

state  police  Finally,  all  or  any  state  legislation  passed  under  its  police 
invaifcTwhen  power  becomes  invalid  when  it  conflicts  with  national  legislation 
witt  national  Passe(^  under  the  commercial  power  of  Congress.  Thus,  in 
legislation  holding  a  Texan  statute  unconstitutional,  Justice  Brewer  said  : 

Generally  it  may  be  said  in  respect  to  laws  of  this  character  that, 
though  resting  upon  the  police  power  of  the  state,  they  must  yield' 
whenever  Congress,  in  the  exercise  of  the  powers  granted  to  it,  legis- 
lates upon  the  precise  subject  matter,  for  that  power,  like  all  other 
reserved  powers  of  the  states,  is  subordinate  to  those  in  the  terms 
conferred  by  the  Constitution  upon  the  nation.4 

when  does          A  vexed  question  and  one  of  vital  importance  to  the  states  is, 

interstate          ,,T1  j  .        . 

commerce       When  does   interstate  commerce  or  foreign  commerce  cease? 


In  otner  wor°X  When  does  the  act  cease  to  be  one  under  the 
commerce?  control  of  the  federal  government  and  become  a  purely  domestic 
act  under  state  regulation  ?  The  court  has  held  that  commerce 
is  not  simply  transportation  and  importation  but  also  sale. 
Thus  Marshall  in  an  early  case  said  : 

1  Bowman  v.  Chicago  &  Northwestern  R.  R.  Co.,  125  U.S.  488,  489. 

2  Plumley  v.  Massachusetts,  155  U.S.  461. 

8  Schollenberger  v.  Pennsylvania,  171  U.S.  I,  14. 

4  Gulf,  Colorado  &  Santa  Fe  R.  R.  Co.  v.  Hefiey,  158  U.S.  98,  104. 


THE  REGULATION  OF  COMMERCE  487 

i 

.  .  .  There  is  no  difference,  in  effect,  between  a  power  to  prohibit  the 
sale  of  an  article,  and  the  power  to  prohibit  its  introduction  into  the 
country.  The  one  would  be  a  necessary  consequence  of  die  other. 
No  goods  would  be  imported  if  none  could  be  sold.  .  .  .  Sale  is  the 
object  of  importation.  .  .  .  * 

Yet,  as  has  been  shown,  the  states  retain  absolute  control 
over  persons  and  property  and  acts  which  are  completely  within 
their  jurisdiction.  Thus  it  is  a  matter  of  everyday  observation 
that  the  sale  of  liquor,  drugs,  tobacco,  and  other  articles  is 
subject  to  state  restriction  and  even  to  state  prohibition.  At 
what  point  does  this  commercial  transaction  cease  to  be  under 
the  protection  of  the  commerce  clause  and  come  under  state 
control  ?  The  court  has  thus  answered  the  question : 

It  is  sufficient  for  the  present  to  say,  generally,  that  where  the  Tfce"on«i- 
importer  has  so  acted  upon  the  thing  imported  that  it  has  become  *alfac 
incorporated  and  mixed  up  with  the  mass  of  property  in  the  country, 
it  has,  perhaps,  lost  its  distinctive  character  as  an  import,  and  has 
become  subject  to  the  taxing  power  of  the  state ;  but  while  remaining 
the  property*  of  the  importer,  in  his  warehouse,  in  the  original  form  or 
package  in  which  it  was  imported,  a  tax  upon  it  is  too  plainly  a  duty 
upon  imports  to  escape  the  prohibition  in  die  Constitution.! 

From  this  doctrine  of  the  original  package  the  court  has  not 
departed,  although  it  has  insisted  that  such  packages  be  the 
ones  ordinarily  used  in  commerce  and  not  so  small  as  to  raise 
suspicion  that  they  were  adopted  for  the  purpose  of  gaining 
the  protection  of  the  doctrine.3 

INTERSTATE  COMMERCE  AND  THE  IMPORTATION  OF 
INTOXICATING  LIQUOR 

Thus,  although  a  state  might  prohibit  the  sale  of  intoxicating 
liquors,  such  could  be  shipped  from  another  state  and  sold  by 
the  importer  in  the  original  packages.4 

1  Bnrarn  v.  Maryland,  12  Wheat.  419,  439,  447. 

1  Ibid.  12  Wheat.  441. 

3  May  <§•»  Co.  v.  Xrso  Orleans,  178  U.S.  496;  Austin  v.  Tennessee,  179  U.S. 
-ee  also  W.  W.  Wfflooghby,  The  Constitutional  Law  of  die  United  States, 
Vol.  II.  pp.  645-650. 

«  "A  citizen  of  one  state  has  the  right  to  import  beer  into  another  state  and 
sell  it  there  in  hs  original  packages."  —  Leisy  v.  Hard  in,  135  U.  S.  100 


The  Wilson 
Law,  1890 


Application 
of  the 
Wilson  Law 


Webb-Kenyon 
Law,  1913 


488    THE  GOVERNMENT  OF  THE  UNITED  STATES 

In  answer  to  the  demands  of  those  states  which  had  pro- 
hibited the  sale  of  liquor,  Congress  in  1890  passed  the  so-called 
Wilson  Act.  By  this  law  all  sale  of  liquor  became  subject  to 
the  police  regulations  of  a  state  upon  arrival  in  a  state.  Thus 
the  doctrine  of  Marshall  concerning  the  sale  in  original  packages 
was  modified.  But  it  is  important  to  notice,  however,  that  the 
original-package  theory  still  holds  good  for  all  articles  save 
liquor.  The  constitutionality  of  the  Wilson  Law  was  upheld  in 
the  case  of  In  re  Rahrerl 

The  advantages  which  the  cause  of  prohibition  hoped  to  gain  by 
the  Wilson  Law  were,  however,  somewhat  diminished  by  the  sub- 
sequent decisions  of  the  court.  For  example,  the  words  "upon 
arrival "  have  been  held  to  mean  the  actual  consummation  of 
the  shipment  and  not  the  arrival  at  the  state  line.  As  a  result 
liquors  were  not  subject  to  state  regulation  until  they  had  reached 
their  ultimate  destination,  a  fact  which  increased  the  expense 
and  diminished  the  ease  of  supervision.2  In  1897,  in  passing 
upon  the  South  Carolina  Dispensary  Law,  the  court  declared : 
"  But  the  right  of  persons  in  one  state  to  ship  liquor  into 
another  state  to  a  resident  for  his  own  use  is  derived  from  the 
Constitution  of  the  United  States,  and  does  not  rest  on  the 
grant  of  a  state  law."3  While  in  Adams  Express  Co.  v.  Iowa* 
shipments  of  liquor  to  be  paid  for  on  delivery  were  held  to  be 
beyond  the  power  of  the  states  to  prevent  or  punish.  These 
decisions,  chosen  from  many,  show  how  impossible  it  was  to 
enforce  the  ideas  of  the  prohibitionists. 

As  a  result  of  the  spread  of  "state-wide"  prohibition  the 
demand  for  legislation  which  would  allow  the  states  to  enforce 
their  own  laws  became  overwhelming.  Consequently  on  March  I, 
1913,  the  Webb-Kenyon  Law  was  passed  by  Congress.  By  this 
law  it  is  prohibited  to  ship  or  transport  into  any  state,  territory, 
or  district  of  the  United  States,  from  any  other  state,  territory, 
district,  or  from  any  foreign  country,  intoxicating  liquors  of  any 
kind  intended  to  be  received,  possessed,  or  sold  either  in  the 

1  140  U.  S.  545. 

2  Rhodes  v.  Iowa,  170  U.  S.  412. 

3  Vance  v.  Vandercook  Co.,  170  U.  S.  439,  452,  453. 
*  196  U.S.  147. 


THE  REGULATION  OF  COMMERCE  489 

original  package  or  otherwise,  in  violation  of  any  law  of  such 
states,  territories,  or  districts.1  This  act  was  vetoed  by  President 
Taft  on  the  ground  that  it  was  "  a  delegation  by  Congress  to  the 
states  of  the  power  of  regulating  interstate  commerce  in  liquors 
which  is  vested  exclusively  in  Congress."2  This  veto  was  over- 
whelmingly overridden  by  a  large  majority  in  both  Houses.  The 
constitutionality  of  this  law  was  upheld  in  1916  when  the  court 
said  in  part : 

.  .  .  We  can  see  no  reason  for  saying  that  although  Congress,  in  view  The  court 
of  the  nature  and  character  of  intoxicants,  had  a  power  to  forbid  their  ^b°^s  the 
movement  in  interstate  commerce,  it  had  not  the  authority  to  so  deal  Kenyon  Law 
with  the  subject  as  to  establish  a  regulation,  which  is  what  was  done  by 
the  Webb-Kenyon  Law,  making  it  impossible  for  one  state  to  violate 
the  prohibitions  of  the  laws  of  another  through  the  channels  of  interstate 
commerce.  .  .  .  Or,  in  other  words  .  .  .  that  because  Congress  in  adopt- 
ing a  regulation  had  considered  the  nature  and  character  of  our  dual 
system  of  government,  state  and  nation,  and  instead  of  absolutely  pro- 
hibiting, had  so  conformed  its  regulation  as  to  produce  cooperation 
between  the  national  and  local  forces  of  government  to  the  end  of  pre- 
serving the  rights  of  all,  it  had  thereby'  transcended  the  complete  and 
perfect  power  of  regulation  conferred  by  the  Constitution.3 

STATE  REGULATION  OF  BUSINESS 

Further  examples  of  the  extent  to  which  commerce  may  be  corporations 
subject  to  the  police  power  of  the  states  must  be  noted.    A  cor-  stateCreguia- 
poration  not  being  a  "  citizen  "  in  the  sense  that  it  is  entitled  to  tlon 
the  privileges  and  immunities  of  the  citizens  of  the  several  states 
may  be  prohibited  from  doing  business  within  a  state.    Thus  it 
was  held  in  1868  that  a  corporation  "  .  .  .  having  no  absolute 
right  of  recognition  in  other  states,  but  depending  for  such  rec- 
ognition and  the  enforcement  of  its  contracts  upon  their  assent, 
it  follows,  as  a  matter  of  course,  that  such  assent  may  be  granted 
upon  such  terms  and  conditions  as  those  states  may  think  proper 
to  impose.    They  may  exclude  the  foreign  corporation  entirely ; 

1  37  Stat.  at  Large,  p.  699 ;  see  speech  of  Senator  Root  condemning  the 
act,  in  the  Congressional  Record,  February  10,  1913. 

2  Congressional  Record,  February  28,  1913,  Vol.  XLIX,  Part  V,  p.  4291. 
8  Clark  Distilling  Co.  v.  Western  Maryland  R.  Co.,  242  U.S.  311,  331. 


490    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Corporations 
may  be  ex- 
cluded from 
"doing  busi- 
ness," but 
not  from 
interstate 
commerce 


A  state  may 
not  tax  a 
corporation 
so  as  to  affect 
interstate 
commerce 


Distinction 
between 
"drummers 
and  "ped- 
dlers " 


they  may  restrict  its  business  to  particular  localities,  or  they  may 
exact  such  security  for  the  performance  of  its  contracts  with  their 
citizens  as  in  their  judgment  will  best  promote  the  public  interest. 
The  whole  matter  rests  in  their  discretion."  1 

However,  it  should  be  clearly  understood  that  this  merely 
permits  a  state  to  exclude  a  corporation  from  "  doing  business  " 
as  a  corporation  within  its  borders.  No  state  can  prevent 
a  corporation  from  shipping  its  products  or  engaging  in  inter- 
state commerce ;  but  a  state  is  permitted  to  regulate,  license, 
tax,  or  prohibit  a  foreign  corporation  from  engaging  in  purely 
domestic  commerce  as  a  corporation.  Furthermore,  the  regula- 
tions or  restrictions  placed  upon  a  foreign  corporation  must  not 
interfere  with  the  interstate  activities  of  the  corporation.  Thus  it 
was  permissible  for  the  state  of  Missouri  to  prohibit  the  Inter- 
national Harvester  Company  from  doing  business  within  the  state 
until  it  complied  with  certain  state  regulations.2  But  a  license  tax 
levied  upon  a  telegraph  company  affects  both  its  interstate  and 
state  business  and  hence  it  is  unconstitutional,3  while  in  1909 
it  was  held  that  a  charter  fee  of  a  certain  per  cent  might  not  be 
exacted  from  a  foreign  telegraph  company  as  a  condition  of  doing 
intrastate  business.4  In  like  manner^  in  1827,  it  was  upheld  that 
a  license  tax  on  an  importer^or  upon  the  business  of  importing 
foods  was  invalid.5  As  a  consequence  it  is  forbidden  to  tax 
"  drummers,"  whether  agents  of  corporations  or  not,  who  are 
merely  soliciting  business.6  But  when  the  goods  imported  into 
a  state  are  commingled  with  the  general  articles  of  commerce, 
in  other  words,  when  the  original  packages  in  which  they  are 
imported  are  broken,  they  cease  to  enjoy  the  protection  of  the 
commerce  clause.  A  state,  therefore,  may  regulate  their  sale  and 
the  agents  accomplishing  this  sale.  Hence  "drummers,"  persons 
who  solicit  orders  for  the  importation  of  goods,  are  distinguished 

1  Paul\.  Virginia,  8  Wall.  168,  181. 

2  American  Year  Book  (1914),  p.  259  ;  International  Harvester  Co.  v.  Missouri, 
234  U.S.  199. 

8  Leloup  v.  Port  of  Mobile,  127  U.S.  640. 

4  Western  Union  Tel.  Co.  v.  Kansas,  216  U.  S.  I  ;  see  also  W.  W.  Willoughby, 
The  Constitutional  Law  of  the  United  States,  Vol.  II,  pp.  698-699,  for  criticism 
of  this  decision. 

6  Brown  v.  Maryland,  12  Wheat.  419,  437,  447. 

6  Robbins  v.  Shelby  County  Taxing  District,  120  U.  S.  489. 


THE  REGULATION  OF  COMMERCE  491 

from  peddlers,  persons  who  sell  goods  already  within  the  state. 
Drummers  may  not  be  taxed  or  subjected  to  license  fees  as 
agents  from  another  state,  while  peddlers  may  be  licensed,  pro- 
viding such  licenses  do  not  discriminate  against  goods  brought 
from  another  state.1 

STATE  REGULATION  OF  TRANSPORTATION 

In  the  exercise  of  the  police  powers  of  the  states  commerce  state  reguia- 
is  affected  in  other  ways.  Not  only  may  a  state  guard  the  Jp^awonof 
morals,  health,  and  safety  of  its  inhabitants,  but  it  may  provide  railroads 
for  their  convenience.  By  a  series  of  decisions  the  court  has 
upheld  state  laws,  forbidding  the  running  of  freight  trains  on 
Sunday,  requiring  trains  to  stop  at  county  seats,  requiring  loco- 
motive engineers  to  be  examined  by  state  authorities,  regulating 
the  heating  of  passenger  cars,  and  many  other  such  regulations.2 
The  general  principles  on  which  these  cases  were  decided  were 
that  the  court  would  consider  whether  the  law  in  question  was 
one  which  was  necessary  for  the  convenience  or  safety  of  the 
people.  If  these  facts  were  established,  the  law  was  upheld.  On 
the  contrary,  if  it  were  shown  that  the  community  in  question 
was  adequately  served,  its  size  and  importance  being  considered, 
the  law  was  held  to  be  an  arbitrary  and  unnecessary  burden  upon 
interstate  commerce  and  was  disallowed.  Thus  the  court  disal- 
lowed a  regulation  of  the  South  Carolina  Railroad  Commission, 
requiring  the  Atlantic  Coast  Line  to  stop  its  fastest  expresses 
at  Latta,  a  hamlet  of  four  hundred  and  fifty-three  persons,  on 
the  ground  that  as  there  were  numerous  local  trains  stopping 
there,  and  as  the  fast  train  stopped  at  a  station  within  twenty 
miles,  such  a  regulation  was  unnecessarily  burdensome  to  the 
railroad.3 

The   states,  furthermore,  have  power  to   regulate   the  rates  s^nteofr^a~ 
which  public  service  corporations  may  charge.    The  restrictions 
upon  the  power  are  two :  (i)  the  rates  must  not  be  confiscatory, 

1  Emert  v.  Missouri,  1 56  U.  S.  296. 

2  For  a  list  of  such  cases  with  references,  see  W.  W.  Willoughby,  The  Con- 
stitutional Law  of  the  United  States,  Vol.  II,  pp.  665-670. 

3J.  T.  Young,  The  New  American  Government  and  its  Work,  p.  210; 
Atlantic  Coast  Line  v.  The  Railroad  Commissioners  of  South  Carolina,  207  U.  S. 
328  (1907). 


492    THE  GOVERNMENT  OF  THE  UNITED  STATES 

which  would  be  to  deprive  the  corporation  of  its  property  without 
due  process  of  law ;  and  (2)  the  rates  prescribed  for  domestic  com- 
merce must  not  affect  interstate  commerce  unduly.  By  a  series 
of  decisions  beginning  in  1877  1  it  was  held  that  states  might  fix 
rates  not  merely  for  purely  domestic  commerce  but  for  the  por- 
tions of  interstate  business  performed  within  their  boundaries. 
But  in  1886  the  court  altered  its  point  of  view.  It  then  held 
that  although  the  state  had  the  power  to  prescribe  rates  for 
transportation  beginning  and  ending  within  the  state,  it  had  no 
power  to  fix  rates  or  fares  for  transportation  which  originated  or 
terminated  outside  of  the  state.  Such  transportation  was  inter- 
state in  character  and  under  the  exclusive  control  of  Congress.2 
But  the  recent  opinion  of  the  court  states  the  more  modern 
Minnesota  doctrine.  In  the  Minnesota  Rate  Case  (I9I2)3  it  was  held  that 
states  might  prescribe  reasonable  rates  for  exclusive  internal 
traffic  on  interstate  carriers,  although  it  may  be  "by  reason  of 
the  interblending  of  the  interstate  and  intrastate  operations  of 
intrastate  carriers,  that  adequate  regulation  of  their  interstate 
rates  cannot  be  maintained  without  imposing  requirements  with 
respect  to  their  intrastate  rates  which  substantially  affect  the 
former.  .  .  ."  While  in  the  Shreveport  Case  (iQis)4  the  court 
upheld  the  Interstate  Commerce  Commission  in  declaring  that 
the  rates  fixed  by  the  Texas  Railroad  Commission  were  discrimi- 
natory against  commerce  destined  for  Shreveport,  Louisiana, 
and  hence  illegal.  In  giving  the  opinion  of  the  court  Justice 
Hughes  said : 

Shreveport  Whenever  the  interstate  and  intrastate  transactions  of  carriers  are  so 
related  that  the  government  of  one  involves  the  control  of  the  other,  it 
is  Congress,  and  not  the  state,  that  is  entitled  to  prescribe  the  final  and 
dominant  rule.5 

This  decision,  while  lessening  the  power  of  the  state  to  prescribe 
rates,  will  tend  to  bring  uniformity  and  justice  in  both  interstate 
and  intrastate  commerce. 

1  Munn  v.  Illinois,  94  U.S.  113. 

2  Wabash,  St.  Louis  &>  Pacific  R.R.  Co.  v.  Illinois,  118  U.S.  557. 

8  Simpson  v.  Shepard,  230  U.  S.  352  ;    see  also  Political  Science   Quarterly, 
Vol.  XXIX,  pp.  57  et  seq. 

*  234  U.  S.  342,  432,  433.  a  234  U.  S.  351. 


THE  REGULATION  OF  COMMERCE  493 

Although  a  state  may  not  tax  interstate  commerce  either  Limitations 
j  directly  or  indirectly  in  such  a  way  as  to  burden  or  restrict  it,  a  ation  of  * 
|  state  may  tax  all  the  property  within  its  boundaries.  But  in  commerce 
accordance  with  the  doctrine  of  Brown  v.  Maryland?-  this 
property  must  be  actually  mingled  with  the  general  mass  of 
property  within  the  jurisdiction  of  the  state.  Real  estate,  vessels 
registered  within  the  ports  of  the  state,  the  average  number  of 
cars  continuously  used  in  the  state,  may.  be  taxed.  But  may  a 
state  use  other  units  based  upon  the  amount  of  freight  or  pas- 
sengers carried  or  the  amount  of  business  done  within  the  state  ? 
There  has  seemingly  been  a  change  of  opinion  on  the  part  of 
the  court  on  this  question.  Thus,  in  1873  it  was  held  that  a 
tax  upon  freight  transported  from  state  to  state  was  an  inter- 
ference with  interstate  commerce  and  hence  invalid.2  But  in  the 
same  year  it  was  held  that  a  tax  upon  the  gross  receipts  of  a 
railroad  company  doing  business  within  a  state  was  constitu- 
tional. Thus  the  court  said :  "  The  tax  is  laid  upon  the  gross 
receipts  of  the  company ;  laid  upon  a  fund  which  has  become 
the  property  of  the  company,  mingled  with  its  other  property, 
and  possibly  expended  in  improvements  or  put  out  at  interest."3 
The  reasoning  of  Brown  v.  Maryland  was  followed  and  it  was 
held  that  the  tax  rested  not  upon  interstate  commerce  but  upon 
the  receipts  derived  not  merely  from  interstate  commerce  but 
from  all  sources,  and  that  these  were  mingled  together  with  the 
other  resources  of  the  company.  In  1887  the  court  reexamined 
its  reasoning  and  held  that  a  tax  upon  the  gross  receipts  of  a 
steamship  company  was  a  tax  upon  interstate  commerce  and 
hence  unconstitutional.  It  was  held  that  such  a  tax  was  not  like 
a  tax  upon  imported  goods  which  had  been  commingled  with  the 
other  property  of  a  state,  for  these  goods  were  singled  out  for 
taxation  by  reason  of  their  being  imported  ;  whereas  the  receipts 
of  a  transportation  company  "  are  taxed  not  only  because  they 
are  money,  or  its  value,  but  because  they  were  received  for 
transportation."  4  This  reasoning  holds  to  this  day.5 

1  12  Wheat.  419,  437,  447.  2  State  Freight  Tax,  15  Wall.  232. 

3  State  Tax  on  R.  R.  Gross  Receipts,  1 5  Wall.  284,  294. 

4  Philadelphia  Steamship  Co.  v.  Pennsylvania,  122  U.S.  326,  342. 

5  For  the   power  of  a  state  to  tax  the  property  of  interstate  carriers  see 
Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  II,  pp.  711-726. 


494    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Regulation 
of  commerce 
with  the 
Indians 


Regulation 
of  foreign 
commerce 


The  protec- 
tive tariff 


FEDERAL  LEGISLATION  CONCERNING  COMMERCE 

Thus  far  the  powers  of  the  states  to  legislate  concerning 
commerce  have  been  discussed.  It  has  been  shown  that  to  the 
states  is  left  a  wide  field  of  action,  but  that  in  this  field  state 
action  must  always  be  subordinate  to  the  federal  power  of  legis- 
lation. The  next  topic  is  naturally  a  discussion  of  the  federal 
legislation  concerning  commerce.  This  will  be  considered  under 
three  heads :  legislation  concerning  trade  with  the  Indians, 
legislation  concerning  foreign  commerce,  legislation  concerning 
interstate  commerce. 

The  regulation  of  commerce  with  the  Indians  began  in  1790 
by  the  passage  of  an  act  requiring  traders  to  obtain  licenses.1 
This  was  followed  by  a  long  series  of  acts  designed  to  protect 
the  Indians  against  unscrupulous  traders  and  to  prevent  the  sale 
of  intoxicating  liquors.  In  1866  the  court,  in  upholding  one  of 
these  laws,  summarized  the  previous  decisions  and  held  that  if 
commerce  was  to  be  carried  on  with  an  Indian  tribe,  or  a  member 
of  a  tribe,  V  it  is  subject  to  be  regulated  by  Congress,  although 
within  the  limits  of  a  state."  Furthermore,  "  neither  the  con- 
stitution of  the  state  nor  an  act  of  its  legislature  .  .  .  can  with- 
draw them  [Indians]  from  the  influence  of  an  act  of  Congress 
which  that  body  has  a  constitutional  right  to  pass  concerning 
them."  2  Since  then  the  power  of  Congress  to  regulate  or  pro- 
hibit the  trade  with  Indians  has  been  unquestioned. 

Regulation , of  foreign  commerce  also  began  in  the  first  Con- 
gress. On  July  4,  1789,  an  act  laying  duties  on  goods  imported 
into  the  United  States  was  passed.  In  1790  Washington  recom- 
mended the  promotion  of  such  industries  as  would  make  the 
United  States  independent  of  other  nations  particularly  in  mili- 
tary supplies.  In  1791  Hamilton's  famous  report  recommended 
a  protective  tariff ;  and  from  that  time  duties  have  been  collected 
not  merely  for  revenue  but  also  for  the  protection  of  American 
industries.  The  constitutionality  of  these  measures  has  been 
upheld  upon  two  grounds  :  (i)  that  they  were  revenue  measures, 
and  (2)  that  they  were  acts  regulating  trade  which  Congress  had 
undoubted  power  to  regulate. 

1  i  Stat.  at  Large,  chap,  xxxiii. 

3  United  States  v.  Holiday,  3  Wall.  407,  419. 


THE  REGULATION  OF  COMMERCE  495 

The  attitude  of  the  two  great  parties  upon  the  question  of  Attitude  of 
i  protection  is  quite  antagonistic.    The  Federalists  and  their  sue-  JJrtSs1*1' 
cessors,  the  Whigs  and  Republicans,  have  stood  quite  consist- 
ently for  a  tariff  giving  high  protection.    The  Democrats,  on  the 
!  other  hand,  have  insisted  that  the  tariff  should  be  levied  chiefly 
for  revenue,  and  that  the  protective  features  should  be  reduced 
to  a  minimum.    This  difference  in  policy  has  been  discussed  in 
other  chapters.1 

Federal  legislation  concerning  foreign  commerce  has  not  been  Embargoes 
confined  to  tariff  regulations.  Regulation  of  foreign  commerce 
includes  the  power  to  prohibit ;  and  Congress  has  frequently 
empowered  the  president,  under  certain  circumstances,  to  lay  an 
embargo  upon  commerce  or  to  prohibit  commerce  from  certain 
nations.2  A  recent  example  of  this  power  is  when  Congress  in 
1912  authorized  President  Taft  to  lay  an  embargo  upon  the 
exportation  of  arms  to  Mexico.  Still  more  drastic  were  the  em- 
bargoes which  President  Wilson  laid  upon  commerce  destined  for 
neutral  countries  whose  neutrality  was  suspected,  the  licenses  that 
were  issued  for  trade  in  certain  commodities,  and  the  prohibitions 
which  were  laid  upon  the  importation  of  certain  articles.3 

In  addition  to  the  prohibition  of  commerce,    Congress  has  Tonnage  dues 
very  frequently  passed  laws  levying  tonnage  dues  or  increased  duties"6 
duties  upon  the  commerce  of  nations  discriminating  against  the 
United  States.    In  these  acts  the  president  is  usually  given  the 
power  to  put  such  legislation  in  force  upon  satisfactory  evidence 
of  discrimination  against  the  United  States ;  and  to  suspend  the 
operation  of  the  laws  when  he  is  satisfied  that  the  discrimination 
has  been  removed.4 

The  act  of  1890  was  questioned  as  involving  an  unlawful  dele- 
gation of  legislative  power.  In  1891,  however,  the  court  answered 
this  objection  in  these  words  : 

1  Chapters  V  and  XVIII. 

2  i  Stat.  at  Large  (1794),  chap,  xli,  p.  372;  ibid.  (1798),  chap,  liii,  p.  565;  ibid. 
(1799),  chap,  ii,  p.  613 ;  2  Stat.  at  Large  (1806),  chap,  xxix,  p.  379 ;  ibid.  (1809), 
chap,  xxiv,  p.  528.    See  also  Field v.  Clark,  143  U.S.  649. 

3  See  Trading  with  the  Enemy  Act,  65th  Cong.,  Public  Act  91. 

4  3  Stat.  at  Large  ( 1815),  chap,  xxxvii,  p.  224;  ibid.  (1817),  chap,  xxxix,  p.  361 ; 
4  Stat.  at  Large  (1824),  chap,  iv,  p.  2;  ibid.  (1828),  chap,  cxi,  p.  308  ;  ibid.  (1830), 
chap.  ccxix,p.  425 ;  14  Stat.  at  Large  (1866),  chap,  xii,  p.  3 ;  26  Stat.  at  Large  (1890), 
chap,  mccxliv,  p.  616. 


496    THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  court 
holds  that 
Congress  may 
empower  the 
president  to 
put  into  effect 
increased 
duties  in 
certain  con- 
tingencies 


That  Congress  cannot  delegate  legislative  power  to  the  president  is 
a  principle  universally  recognized  as  vital  to  the  integrity  and  main- 
tenance of  the  system  of  government  ordained  by  the  Constitution. 
The  act  of  October  i,  1890,  in  the  particular  under  consideration,  is 
inconsistent  with  that  principle.  It  does  not,  in  any  real  sense,  invest 
the  president  with  the  power  of  legislation.  .  .  .  Congress  itself 
prescribed,  in  advance,  the  duties  to  be  levied,  collected,  and  paid,  on 
sugar,  molasses,  coffee,  tea  or  hides,  produced  by  or  exported  from 
such  designated  country,  while  the  suspension  lasted.  Nothing  involv- 
ing the  expediency  or  the  just  operation  of  such  legislation  was  left  to 
the  determination  of  the  president.  .  .  .  Legislative  power  was  exer- 
cised when  Congress  declared  that  the  suspension  should  take  effect 
upon  a  named  contingency.  What  the  president  was  required  to  do 
was  simply  in  the  execution  of  the  .act  of  Congress.  It  was  not  the 
making  of  the  law.  He  was  the  mere  agent  of  the  law-making  depart- 
ment to  ascertain  and  declare  the  event  upon  which  its  expressed  will 
was  to  take  effect.1 


Reciprocity  In  the  tariff  act  of  1897  the  principle  of  reciprocity  was 
reintroduced  but  made  to  depend  upon  a  treaty  requiring  the 
consent  of  two  thirds  of  the  Senate  instead  of  upon  executive 
proclamation.  In  a  few  cases  reciprocity  treaties  have  been 
negotiated,  as  for  example  with  Canada  (1854-1866)  and  Hawaii 
(1876-1900),  but  many  others  have  failed  because  of  the  oppo- 
sition of  the  Senate.  In  1911  a  reciprocity  treaty  with  Canada 
although  ratified  by  Congress  was  rejected  by  Canada. 

In  the  regulation  of  commerce  Congress  has  the  power  to 
prohibit  trade  in  certain  articles.  A  constitutional  restriction  is 
found  in  Article  I,  Sect,  ix,  clause  I,  of.  the  Constitution,  which 
prevented  Congress  from  putting  an  end  to  the  slave  trade  until 
1808.  By  the  act  of  1807,  however,  this  trade,  already  illegal  in 
all  the  states  except  Georgia  and  South  Carolina,  was  prohibited 
at  the  earliest  possible  date. 

immigration  Commerce  includes  transportation  of  persons  as  well  as  of 
things.  Consequently  Congress  has  the  power  to  regulate  im- 
migration to  the  United  States.  In  1848  it  was  decided  by 
the  court  that  the  federal  government  had  exclusive  jurisdiction 
over  all  matters  relating  to  immigration,  and  consequently  taxes 


Prohibition 
of  trade  in 
certain 
articles 


1  Field  v.  Clark,  143  U.  S.  649,  692,  693. 


THE  REGULATION  OF  COMMERCE  497 

imposed  by  the  states  were  illegal.1    In  1899,  in  the  Chinese 
Exclusion  Case?  it  was  said  : 

The  power  of  exclusion  of  foreigners  being  an  incident  of  sovereignty  Chinese  Ex- 


upheld 


belonging  to  the  government  of  the  United  States,  as  a  part  of  those  J2US1  Law 
sovereign  powers  delegated  by  the  Constitution,  the  right  to  its  exercise 
at  any  time  when,  in  the  judgment  of  the  government,  the  interests  of 
the  country  require  it,  cannot  be  granted  away  or  restrained  on  behalf 
of  anyone. 

Consequently  the  government  possesses  the  power  to  supersede 
•a  treaty  allowing  immigration  and  to  regulate  even  to  the 
extent  of  forbidding  immigration. 

The  first  federal  act  concerning  immigration  was  passed  in  classes  ex- 
1864,  providing  for  an  Immigration  Commission  which  should 
cooperate  with  the  states  in  inducing  immigrants  to  come  and 
in  protecting  them  against  fraud.    In  1882  began  the  policy  of 
restricting  immigration.    The  excluded  classes  by  this  act  were' 
idiots,   escaped  convicts,  and  persons  likely  to  become  public 
charges.    Since  that  date  additional  restrictions  have  been  added 
frequently  until  in  1917  the  excluded  classes  included  not  merely 
the  above  but  persons  afflicted  with  a  dangerous  or  contagious 
or  loathsome  disease,  those  who  confess  to  or  have  been  con- 
victed of  a  crime  involving  moral  turpitude,  anarchists,  those 
morally    unsound,    prostitutes    and    purveyors    of    prostitutes, 
paupers    and    professional    beggars,    orientals    and   those    who 
cannot  read  some  language  or   dialect.    This   last  clause  has  Literacy  test 
been  a  bone  of  contention  since  the  administration  of  President  JJX^W 
Cleveland,    who    vetoed    a    bill    containing    a    similar    clause ; 
President  Taft  did  likewise ;  and   President   Wilson  vetoed  a 
similar  bill  in  1915,  and  also  the  present  one,  which  was  passed 
over  his  veto  by  a  nonpartisan  vote. 

One  other  class  has  been  excluded  at  the  demand  of  organized  contract  labor 
labor.    This  includes  laborers  who  come  to  this  country  under 
contract,    except    teachers,    actors,    musicians,    ministers,    and 
domestic  servants.    This  act,   originally  passed    in    1895,   was 
extended  in  1903  so  as  to  cover  every  kind  of  implied  contract. 

1  Passenger  Cases,  7  How.  283. 

2  130  U.S.  581,609. 


Enforcement 
of  immigra- 
tion laws 


Navigation 
and  inspec- 
tion law 


The 

La  Follette 

Seaman's 

Act,  1915 


498    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  enforcement  of  the  immigration  laws  is  in  the  hands  of  the 
Department  of  Labor,  particularly  in  the  Commissioner-General 
of  Immigration.  Local  commissioners  are  appointed  at  various 
ports  under  whom  inspectors  apply  the  law.  Appeals  lie  from  the 
inspectors  to  the  commissioners,  from  them  to  the  Commissioner- 
General,  thence  to  the  Secretary  of  Labor,  whose  decision  is  final.; 

Congress  has  furthermore  regulated  foreign  and  domestic 
commerce  by  the  passage  of  navigation  and  inspection  laws. 
These  laws  require  all  vessels  to  conform  to  certain  regulations 
of  safety  and  health,  and  are  enforced  by  inspectors  acting 
under  the  Department  of  Commerce.  The  last  of  these  laws, 
the  La  Follette  Seaman's  Act,  passed  in  1915,  makes  radical 
changes  in  the  customs  of  employment  at  sea.  Not  only  are 
there  burdensome  requirements  in  the  interest  of  extreme 
safety,  increased  allowances  for  food  of  the  seamen,  and  the 
abolishment  of  corporal  punishment,  but  the  whole  system  of 
payment  of  wages  is  altered.  All  treaties  to  which  the  United 
States  is  a  party  which  conflicted  with  the  provisions  of  the  act 
were  to  be  abrogated  within  ninety  days  of  the  passage  of  the 
act.  Certain  interesting  rulings  have  been  made  by  the  officials 
in  charge  of  the  administration  of  the  law.  The  Attorney- 
General  has  ruled  that  the  safety  appliances  section  did  not 
apply  to  vessels  of  nations  which  had  "  approximately "  equal 
laws ;  while  the  Secretary  of  Commerce  ruled  that  the  section 
which  required  that  75  per  cent  of  the  crew  in  each  depart- 
ment should  be  able  to  understand  the  language  of  the  officers 
meant  the  language  used,  not  necessarily  English.1  Never- 
theless, the  restrictions  of  the  act  are  so  severe  that  it  is  asserted 
that  vessels  under  American  register  have  practically  ceased 
to  be  operated  in  the  Pacific. 


LEGISLATION  CONCERNING  INTERSTATE  COMMERCE 

As  has  been  shown,  the  earliest  legislation  dealt  with  foreign 
commerce,  yet  as  early  as  1824  the  court  thus  clearly  indicated 
that  interstate  as  well  as  foreign  commerce  were  both  subject 
to  federal  legislation  : 


1  American  Year  Book  (1915),  p.  433. 


THE  REGULATION  OF  COMMERCE  499 

The  commerce  of  the  United  States  with  foreign  nations  is  that  of  the  Power  of 
I  whole  United  States.    Every  district  has  a  right  to  participate  in  it.  The  °e°^etses  to 
deep  streams  which  penetrate  our  country  in  every  direction  pass  through  interstate 
the  interior  of  almost  every  state  in  the  Union,  and  furnish  the  means  of  SayTe1  exer- 
exercising  this  right.  If  Congress  has  the  power  to  regulate  it,  that  power  cised  witnin 
must  be  exercised  whenever  the  subject  exists.    If  it  exists  within  the 
States,  if  a  foreign  voyage  may  commence  or  terminate  at  a  port  within 
a  state,  then  the  power  of  Congress  may  be  exercised  within  a  state.1 

Until  1887,  however,  the  power  of  the  government  was  more 
frequently  invoked  to  prevent  state  interference  than  to  establish 
federal  regulation  of  interstate  commerce. 

In  one  respect,  however,  the  government  aided  interstate  internal  im- 
commerce.  This  was  in  the  field  of  internal  improvements.  proveir 
Internal  improvements  have  been  made  in  two  ways.  At  the 
adoption  of  the  Constitution  it  was  customary  for  the  different 
states  to  improve  their  harbors,  and  with  the  assent  of  Congress 
to  levy  port  duties  to  cover  the  expense.  For  example,  one  act 
passed  by  Maryland  in  1780  was  continued  by  successive  con- 
sents of  Congress  until  1850.  A  second  method,  beginning 
with  the  first  Congress,  was  to  appropriate  money  for  lighthouses. 
In  every  instance  Congress  required  that  the  state  on  whose 
shores  the  improvements  were  made  should  cede  the  site  to  the 
United  States.  With  the  rapid  growth  of  the  West  two  ideas 
arose:  (i)  that  it  was  unfair  to  charge  commerce  with  taxes 
•levied  by  the  states  for  their  own  improvement,  and  (2)  that  Development 
the  inland  territories  should  share  in  improvements  made  by 
the  federal  government.  In  1806  this  idea  found  expression 
in  an  appropriation  for  the  Cumberland  Road.  From  that  time  provements 
steady  pressure  was  brought  to  bear  upon  Congress  for  similar 
appropriations.  Jefferson,  Madison,  and  Monroe,  while  doubting 
the  constitutionality  of  these  measures,  admitted  their  necessity. 
In  consequence  roads  were  constructed  through  the  territories, 
and  when  such  highways  crossed  the  states,  special  compacts 
were  made.  In  1823  the  first  act  for  the  improvement  of 
harbors  at  the  expense  of  the  government  was  passed.  In  1824 
Congress  appropriated  thirty  thousand  dollars  for  the  survey  of 
such  roads  as  the  president  should  direct,  and  in  1825  the 

1  Gibbons  v.  Ogden,  9  Wheat,  i,  195. 


500    THE  GOVERNMENT  OF  THE  UNITED  STATES 

government  subscribed  to  the  Delaware  and  Chesapeake  Canal. 
Adams  favored  this  policy  and  over  two  million  dollars  were  ap- 
propriated during  his  administration.  Jackson  had  constitutional 
objections  and  vetoed  all  special  appropriations  for  internal 
improvements.  Nevertheless,  through  riders  attached  to  general 
appropriation  bills,  over  ten  million  dollars  were  appropriated 
during  his  administration.  Thus,  in  spite  of  constitutional  objec- 
tions and  vetoes  from  presidents  the  policy  of  making  internal 
improvements  at  the  expense  of  the  federal  government  has 
continued  and  grown  to  enormous  proportions.  Since  the  Civil 
War  the  construction  of  the  Pacific  Railroad  and  the  improve- 
ment of  the  Mississippi  and  Ohio  Rivers  have  been  the  greatest 
single  projects.  In  addition,  vast  sums  have  been  appropriated 
for  the  improvement  of  rivers  and  harbors,  while  the  building 
of  irrigation  works  and  the  establishment  of  national  forests  have 
opened  up  new  fields  of  national  activity.  Since  1908  over 
two  hundred  and  fifty  million  dollars  have  been  appropriated 
for  rivers  and  harbors  alone. 

criticism  of  The  method  of  appropriation  of  this  vast  sum  is  open  to 
metghodSofnal  criticism.  Attempts  have  been  made  to  adopt  some  comprehen- 
appropriation  sjve  scheme  by  which  different  projects  may  'be  begun  and 
carried  to  completion.  But  with  the  exception  of  the  improve- 
ments along  the  Ohio  and  the  Mississippi  this  method  has  not 
been  followed.  On  the  contrary,  not  only  does  each  senator 
attempt  to  get  a  large  share  for  his  state,  but  each  representative 
tries  to  secure  the  construction  of  some  improvement  in  his 
district.  The  committee  in  charge  of  the  bill  is  subject  to  the 
severest  pressure,  and  opportunities  for  "log-rolling"  and 
bargains  are  numerous.  The  bill  itself,  popularly  known  as  the 
"  pork  barrel,"  thus  contains  not  merely  appropriations  for  meri- 
torious schemes  but  also  grants  inserted  by  persons  of  political 
influence.  So  flagrant  have  these  been  at  times  that  the  entire 
bill  has  been  defeated  by  a  presidential  veto. 

The  constitutionality  of  these  appropriations  can  be  defended 
upon  several  grounds :  the  regulation  of  commerce,  provision 
for  post  roads,  military  necessity.  In  1887  the  court  said, 
concerning  the  laws  authorizing  the  construction  of  the  Central 
Pacific  Railroad : 


THE  REGULATION  OF  COMMERCE  501 

It  cannot  at  the  present  day  be  doubted  that  Congress,  under  the  power  constitution- 
to  regulate  commerce  among  the  several  states,  as  well  as  to  provide  for  JJJj^atfoiis 
postal  accommodations  and  military  exigencies,  had  authority  to  pass  these  *<»  internal 
laws.  The  power  to  construct,  or  to  authorize  individuals  or  corporations  ^heil6™ 
to  construct,  national  highways  and  bridges  from  state  to  state  is  essen- 
tial to  the  complete  control  and  regulation  of  interstate  commerce.1 

While  in  1894  the  court  upheld  the  power  of  Congress  not  only 
to  authorize  the  construction  of  these  roads  but  also  to  exercise 
the  right  of  eminent  domain  in  taking  the  necessary  land  with 
or  without  the  consent  of  the  state  within  which  the  land  might 
be  situated.2  Thus,  if  Congress  can  acquire  land  with  or  without 
the  consent  of  the  state,  it  must  of  necessity  follow  that  Congress 
can  exercise  jurisdiction  over  the  improvements  constructed  upon 
such  land  as  long  as  the  purpose  of  such  improvement  be  a 
national  one. 

The  states  were  at  first  allowed  to  prescribe  the  rates  charged  Regulation  of 
by  common  carriers.    In  1886,  however,  the  Wabash  decision  railroad  rates 
checked  such  a  policy.3    It  will  be  remembered  that  the  court 
held  that  the  state  had  no  power  to  prescribe  rates  for  commerce 
originating   or   terminating  outside  of   its  territory,   since  that 
was  interstate  commerce  and  under  the  protection  of  the  federal 
government.    Complaints  against  unjust  discrimination,  rebates, 
and  excessive  rates  were  not  new ;  but  hitherto  it  seemed  that 
the  states  might  at  least  attempt  to  cope  with  the  evil.    The 
Wabash  decision  transferred  the  agitation  from  the  state  legis- 
latures to  Congress.    As  a  result,  in   1887  the  first  Interstate 
Commerce  Law  was  passed.    By  this  law  a  commission  of  five  The 
was  appointed  to  investigate,  and  in  case  of  illegal  practices  to  commerce 
order  such  to  cease.    The  order  of  the  Commission,  however,  commission 
could  only  be  enforced  by  equity  proceedings   in  the  federal 
courts.    Discrimination,  poolings,  and  rebates  were  prohibited, 
while  the  roads  were  directed  to  file  tariffs  which  should  be 
open  to  the  public.    It  was  also  made  illegal  to  charge  a  higher 
rate  for  a  short  haul  than  for  a  long  haul  over  the  same  line 
and  in  the  same  direction. 

1  California  v.  Central  Pacific  R.  R.  Co.,  127  U.  S.  i,  39. 

2  Luxton  v.  North  Bridge  Co.,  153  U.  S.  525. 

3  See  p.  492. 


Court  in  1897 
denied  that 
the  Commis- 
sion could 
prescribe 
rates 


Commission 
given  power 
to  prescribe 
rates  by  act 
of  1906 


Law  upheld 
by  the  court 


The  Commis- 
sion in  pre- 
scribing rates 
for  interstate 
commerce 
may  also 
regulate  the 
rates  on 
intrastate 
commerce 


502    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  work  of  the  Commission  was  hampered  in  many  ways. 
Although  the  -act  required  the  carriers  to  charge  reasonable  rates, 
it  did  not  specifically  empower  the  Commission  to  determine 
what  these  rates  should  be.  Yet  this  is  what  the  Commission 
attempted  to  do  until  checked  by  the  court  in  1897.  In  denying 
this  to  the  Commission  the  court  said:  "The  grant  of  such 
a  power  is  never  to  be  implied.  .  .  ."  After  examining  the  law 
of  1887  and  the  similar  legislation  of  many  states  the  court 
concludes :  "  Our  conclusion,  then,  is  that  Congress  has  not 
conferred  upon  the  Commission  the  legislative  power  of  pre- 
scribing rates  either  maximum,  or  minimum  or  absolute." 

This  was  remedied  by  the  law  of  1906  which  authorized  the 
Commission  to  prescribe,  after  a  full  hearing,  just  and  reasonable 
rates.  This  act,  however,  raised  certain  constitutional  questions. 
Has  not  Congress  delegated  to  the  Commission  legislative  power  ? 
In  other  words,  is  the  direction  that  the  rates  shall  be  "  just  and 
reasonable  "  a  sufficient  legislative  principle  on  which  an  admin- 
istrative body  may  proceed,  without  itself  assuming  to  legislate  ? 
In  1914  the  court  in  sustaining  an  order  of  the  Commission 
concerning  the  "  long  and  short  haul  "  passed  upon  this  question. 
The  railroads  claimed  that  such  legislation  was  an  unconstitu- 
tional delegation  of  legislative  power.  To  this  the  court  replied  : 
"The  argument  is  that  the  statute,  as  correctly  construed,  is 
but  a  delegation  to  the  Commission  of  legislative  power  which 
Congress  was  incompetent  to  make.  But  the  contention  is 
without  merit."2 

In  the  same  year,  in  the  Shreveport  Case,  the  court,  in  uphold- 
ing an  order  of  the  Commission,  took  the  final  step  toward 
bringing  all  rates,  both  state  and  interstate,  under  the  regulation 
of  the  Commission.  Shreveport,  Louisiana,  only  forty  miles  from 
the  boundary,  competed  with  Dallas  and  Houston,  Texas,  for  the 
trade  of  that  portion  of  Texas.  The  rates  from  points  within 
Texas  to  Dallas  and  Houston,  as  fixed  by  the  state  railroad  com- 
mission, were  decidedly  less  than  the  rates  from  Shreveport. 
Thus  Shreveport  was  put  at  a  disadvantage.  The  Interstate  Com- 
merce Commission  after  hearing  evidence  fixed  the  rates  for 

1  Interstate  Commerce  Commission  v.  Cincinnati,  N.  O.  6°  Texas  Pacific  R.  R. 
Co.,  167  U.  S.  479,  494>  51 1-  2  Intermountain  Rate  Cases,  234  U.  S.  476,  486. 


THE  REGULATION  OF  COMMERCE  503 

interstate  commerce  from  Shreveport  to  points  within  Texas, 

and  ordered  the  roads  in  Texas  to  abstain  from  exacting  any 

higher  rates  for  the  transportation  from  Shreveport  to  Dallas 

and  Houston  than  are  contemporaneously  exacted  for  the  trans- 

portation of  such  articles  from  Dallas  or  Houston  toward  said 

Shreveport  for  an  equal  distance.1    The  effect  of  this  order  was 

to  force  the  roads  to  alter  rates  for  intrastate  commerce  which  Thesftr«*- 

had  already  been  fixed  by  the  state  commission.    The  order  was  portCase 

attacked  upon  many  grounds,  but  chiefly  upon  the  ground  that 

the  Commission  had  no  power  to  regulate  rates  on  purely  intrastate 

commerce.    In  disposing  of  this  objection  Justice  Hughes  said  : 

While  these  decisions  sustaining  the  federal  power  relate  to  measures  Through  the 
adopted  in  the  interest  of  the  safety  of  persons  and  property,  they  illus-  JJJJJ^J}nt 
trate  the  principle  that  Congress  in  the  exercise  of  its  paramount  power  Congress  to 
may  prevent  the  common  instrumentalities  of  interstate  and  intrastate  interstate 
commercial  intercourse  from  being  used  in  their  intrastate  operations  to  ?0?nln2Je 
the  injury  of  interstate  commerce.    This  is  not  to  say  that  Congress  commerce 
possesses  the  authority  to  regulate  the  internal  commerce  of  a  state,  as 
such,  but  that  it  does  possess  the  power  to  foster  and  protect  interstate 
commerce,  and  to  take  all  measures  necessary  or  appropriate  to  that 
end,  although  intrastate  transactions  of  interstate  carriers  may  thereby 
be  controlled. 

The  principle  is  applicable  here.    We  find  no  reason  to  doubt  that  A  state  may 
Congress  is  entitled  to  keep  the  highways  of  interstate  communication 


open  to  interstate  traffic  upon  fair  and  equal  terms.    That  an  unjust  carrier  to  do 

.        .          .  1  .  what  Con- 

discnmmation  in  the  rates  of  a  common  carrier,  by  which  one  person  or  gress  has 

locality  is  unduly  favored  as  against  another  under  substantially  similar 
conditions  of  traffic,  constitutes  an  evil  is  undeniable  ;  and  where  this 
evil  consists  in  the  action  of  an  interstate  carrier  in  unreasonably  dis- 
criminating against  interstate  traffic  over  its  line,  the  authority  of 
Congress  to  prevent  it  is  equally  clear.  It  is  immaterial,  so  far  as  the 
protecting  power  of  Congress  is  concerned,  that  the  discrimination  arises 
from  intrastate  rates  as  compared  with  interstate  rates.  The  use  of  the 
instrument  of  interstate  commerce  in  a  discriminatory  manner  so  as  to 
inflict  injury  upon  that  commerce,  or  some  part  thereof,  furnishes  abun- 
dant ground  for  federal  intervention.  Nor  can  the  attempted  exercise 
of  state  authority  alter  the  matter,  where  Congress  has  acted,  for  a  state 
may  not  authorize  the  carrier  to  do  that  which  Congress  is  entitled  to 
forbid  and  has  forbidden.  .  .  . 

i  234  U.  S.  347-349- 


Congress  may 
supply  the 
needed  cor- 
rection when 
the  relation 
between 
interstate  and 
intrastate 
rates  needs 
correction 


Congress  may 
act  through 
the  Interstate 
Commerce 
Commission 


Work  of  the 
Interstate 
Commerce 
Commission 


504    THE  GOVERNMENT  OF  THE  UNITED  STATES 

It  is  for  Congress  to  supply  the  needed  correction  where  the  relation 
between  intrastate  and  interstate  rates  presents  the  evil  to  be  corrected, 
and  this  it  may  do  completely,  by  reason  of  its  control  over  the  interstate 
carrier  in  all  matters  having  such  a  close  and  substantial  relation  to 
interstate  commerce  that  it  is  necessary  or  appropriate  to  exercise  the 
control  for  the  effective  government  of  that  commerce.  .  .  .  Congress  is 
entitled  to  maintain  its  own  standard  as  to  these  rates  and  to  forbid  any 
discriminatory  action  by  interstate  carriers  which  will  obstruct  the  free- 
dom of  movement  of  interstate  traffic  over  their  lines,  in  accordance 
with  the  terms  it  establishes. 

Having  this  power,  Congress  could  provide  for  its  execution  through 
the  aid  of  a  subordinate  body ;  and  we  conclude  that  the  order  of  the 
Commission  now  in  question  cannot  be  held  invalid  upon  the  ground 
that  it  exceeded  the  authority  which  Congress  could  lawfully  confer.1 

On  the  whole  the  work  of  the  Interstate  Commerce  Commis- 
sion has  been  beneficial.  Rebates  and  secret  agreements  have 
not  altogether  ceased,  but  the  practice  is  rapidly  being  suppressed, 
and  the  punishments  are  severe.  Other  forms  of  discrimination 
have  been  investigated  by  the  Commission  on  the  complaints  of 
the  injured  party,  and  the  federal  courts  have  awarded  large 
damages  against  the  offenders.  In  the  making  of  rates  the  Com- 
mission has  been  criticized  most  severely.  The  roads  complain 
that  they  are  unable  to  meet  the  increased  cost  of  operation, 
that  the  Commission  is  too  theoretical  and  arbitrary  in  its  classi- 
fication of  rates,  and  that  it  proceeds  upon  too  little  knowledge 
of  facts.  On  the  other  hand,  certain  shippers  have  felt  aggrieved 
that  the  Commission  has  allowed  an  increase  of  rates,  and  com- 
plain that  the  railroacjs  have  too  much  influence  with  the  Com- 
mission. Nevertheless,  it  is  generally  admitted  that  the  federal 
regulation  of  the  rates  on  the  great  interstate  carriers  has  pro- 
duced salutary  results,  and  in  its  work  the  Commission  has  justified 
itself.  Had  the  ill-fated  Commerce  Court  been  more  efficient 
and  been  allowed  to  develop  special  knowledge  of  railroad  law, 
more  speed  and  uniform  procedure  might  have  resulted,  which 
would  have  been  a  great  advantage  to  the  Commission. 

With  the  outbreak  of  the  World  War  in  1914  and  the  con- 
sequent vast  increase  in  cost  of  all  railroad  material  and  the 

1  Houston,  East  and  West  Texas  R.  Co,  v.  United  States,  234  U.  S.  342,  353-355. 


THE  REGULATION  OF  COMMERCE  505 

unprecedented  increase  in  amount  of  traffic  the  roads  were  put  Government 
in  a  difficult  condition.  This  condition  was  aggravated  many 
times  by  the  entrance  of  the  United  States  into  the  war  until 
conditions  became  intolerable.  Congestion  was  so  great  that 
even  the  necessities  of  life  could  not  be  delivered,  and  the  roads 
found  that  the  demands  made  upon  them  for  new  equipment 
and  by  labor  could  not  be  met  from  the  rates  fixed  by  the  Com-  • 
mission.  The  huge  loans  which  the  government  was  issuing 
.proved  a  more  attractive  investment  than  railroad  securities,  and 
the  roads  had  difficulty  in  obtaining  the  necessary  funds  with 
which  to  renew  their  securities  which  came  due.  Consequently 
the  president  recommended  that  the  operation  of  the  roads  be 
taken  over  by  the  government.  This  was  done  by  executive 
proclamation  in  December,  1917,  and  the  Secretary  of  the 
Treasury  was  appointed  Director  of  the  Railroads.  In  March 
Congress  finally  passed  an  act  providing  for  the  compensation 
of  the  roads,  and  fixing  the  time  of  government  operation  at  not 
more  than  one  year  and  nine  months  after  the  close  of  the  war.1 
Under  government  control  certain  interesting  things  have  hap- 
pened. Financial  aid  has  been  given  to  the  roads  as  needed,  and 
their  financial  obligations  have  been  taken  care  of,  the  service 
has  been  greatly  curtailed,  and  the  rates  raised  to  an  unprece- 
dented degree.  Wages  also  have  been  increased  to  what  is  con- 
sidered by  some  an  extravagant  amount.  But  most  interesting 
has  been  the  ignoring  of  the  principles  upon  which  the  Sherman 
Law  was  founded.  Competition  instead  of  being  insisted  upon 
has  been  abolished  in  many  cases.  The  resources  and  even 
the  physical  connections  of  competing  roads  have  been  used  in 
common.  In  a  word,  cooperation  rather  than  competition  has 
been  sought.  It  cannot  be  said  that  the  service  has  improved ; 
but  in  answer  to  the  complaints  it  should  be  remembered  that 
the  demand  of  the  war  was  unprecedented. 

FEDERAL  REGULATION  OF  TRUSTS 
After  the  depression  of  1873  industry  was  carried  on  upon  a  Growth  of 

,     f  ~  trusts  and 

larger  and  more  concentrated  scale  than  ever  before.    Corporate  large  corpo. 
organization    took   the   place   of    individual    enterprise.    Goods  rations 

1  65  Cong.,  Public  Act  107. 


Reasons  for 
popular 
suspicion 
of  trusts 


The  Sherman 
Anti-Trust 
Act,  1890 


506    THE  GOVERNMENT  OF  THE  UNITED  STATES 

were  manufactured  in  larger  quantities,  while  'competition  for 
business  produced  ruinous  price  cutting.  Corporate  management 
had  produced  many  economies  in  manufacture,  and  these  advan- 
tages were  now  desired  in  the  disposition  and  sale  of  the  goods. 
This  was  sometimes  secured  by  price  agreements,  and  some- 
times by  outright  purchase  and  consolidation  of  competing  plants. 
In  1882,  however,  the  Standard  Oil  Trust  showed  a  more  advan- 
tageous way.  By  the  trust  method  the  stock  certificates  of  the 
various  competing  companies  were  deposited  with  trustees  who 
conducted  the  entire  business  of  all  the  concerns  included  and 
divided  the  profits  pro  rata.  The  advantages  were  obvious., 
Centralized  control  of  purchase,  manufacture,  and  sale  were 
secured ;  competition  among  the  industries  within  the  trust  was 
ended.  But  other  advantages  less  obvious  and  more  insidious 
were  achieved.  The  trust  avoided  the  expense  of  purchase  and 
consolidation  while  reaping  the  benefits  of  such  procedure ;  no 
new  corporation  requiring  a  new  charter  prescribing  its  privileges 
and  responsibilities  was  required  and  all  publicity  was  avoided. 
Other  industries  were  quick  to  catch  the  idea.  Although  the 
trust  method  of  reorganization  was  not  followed  in  all  consolida- 
tions, the  name  "  Trust "  came  to  be  popularly  applied  to  all 
large  corporations. 

These  huge  organizations  were  bitterly  attacked.  By  checking 
competition  it  seemed  as  if  monopolies  were  created,  and  it  was 
felt  that  prices  would  be  increased.  In  their  efforts  to  drive  com- 
petitors out  of  the  field  trusts  too  often  indulged  in  indefensible 
practices ;  and  from  the  mere  size  of  their  shipments  forced  the 
railroads  to  give  rebates  and  to  discriminate  against  their  com- 
petitors. Their  mischievous  activities  were  not  confined  to 
industry  alone.  In  some  states  it  was  felt  that  the  corporations 
or  the  trusts  with  their  immense  resources  were  controlling  the 
legislature  and  threatening  the  political  life  of  the  state.  During 
the  eighties  the  trusts  were  feared,  hated,  and  attacked. 

As  a  result  of  this  agitation,  Congress,  in  1890,  passed  the 
so-called  Sherman  Anti-Trust  Act,  entitled  "An  Act  to  protect 
Commerce  against  Unlawful  Restraints  and  Monopolies."  In 
this  law  a  prohibition  is  laid  upon  "  every  contract  or  combina- 
tion in  the  form  of  a  trust  or  otherwise,  or  conspiracy  in  restraint 


THE  REGULATION  OF  COMMERCE  507 

of  trade  or  commerce  among  the  several  states,  or  with  foreign 
nations."  The  application  of  this  act  has  brought  up  many 
interesting  problems. 

Did  the  act  apply  to  manufacturers  ?    In  the  first  place,  what  Manufacture 
is  commerce  ?  As  has  been  shown  in  the  Knight  case,1  commerce  me°ce,Cbut" 
does  not  include  manufacture.    "  Nevertheless,  it  does  not  follow  manufactur- 

'  ers  may  corn- 

that  an  attempt  to  monopolize,  or  the  actual  monopoly  of,  the  bine  so  as  to 

manufacture  was  an  attempt,  whether  executory  or  consum-  restraint  of 
mated,  to  monopolize  commerce,  even  though,  in  order  to  c 
dispose  of  the  product,  the  instrumentality  of  commerce  was 
necessarily  invoked."  But  in  the  Addyston  Pipe  case2  it 
was  held  that  where  the  immediate  result  of  a  combination  of 
manufacturers  was  necessarily  a  restraint  upon  trade,  such  a 
combination  would  fall  within  the  prohibitions  of  the  statute. 
The  direct  purpose  of  the  combination  in  the  Knight  case 
was  the  control  of  the  manufacture  of  sugar.  ..."  In  deciding 
the  Addyston  case  the  court  held  that  "  The  direct  and  imme- 
diate result  of  the  combination  was  therefore  necessarily  a 
restraint  upon  interstate  commerce  in  respect  of  articles  manu- 
factured by  any  of  the  parties  to  it  to  be  transported  beyond  the 
state  in  which  they  were  made." 

Did  the  Sherman  Law  apply  to  railroads  ?    In  1 897  it  was  The  Anti- 
held  that  the  law  applied   to   railroads    engaged   in   interstate  applied  to* 
commerce,  and  that  those  contracts  between    competing   roads  railroads 
relating  to  traffic  rates  which  would  produce  a  restraint  of  trade 
were  illegal.3    In  1904,  in  the  Northern  Securities  Case,  the  court 
prohibited  an  investment  or  holding  company  from  voting  the 
shares  it  held  of  competing  roads  or  interfering  in  their  man-  . 
agement.    This  was  a  decided  extension  of  federal  supervision. 
The  investment  company  was  chartered  in  New  York  and  author- 
ized to  purchase,  hold,  and  sell  securities,  and  perform  other  acts 
designed  to  protect,  preserve,  and  improve  such  securities.    To 
this  corporation  was  turned  over  a  controlling  amount  of  stock 
in  the  two  great  transcontinental  railroads,  the  Great  Northern 
and  the  Northern  Pacific.    The  government  proceeded  against 

1  United  States  v.  Knight,  156  U.S.  i,  17. 

2  Addyston  Pipe  and  Steel  Co.  v.  United  States,  175  U.S.  21 1,  240,  241. 
8  United  States  v.  Trans-Missouri  Freight  Association,  166  U.S.  290. 


508    THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  Northern 
s  Case 


The  Anti- 
Trust  Act 
applied  to 
labor  unions 


the  company  upon  the  ground  that,  although  not  itself  a  corpo- 
ration engaged  in  interstate  commerce,  it  might  operate  to  check 
competition  and  thus  exert  a  restraint  upon  trade.  In  the  course 
of  the  majority  opinion,  Justice  Harlan  said : 

...  It  [the  government]  does  not  contend  that  Congress  may  con- 
trol the  mere  acquisition  or  the  mere  ownership  of  stock  in  a  state  corpo- 
ration engaged  in  interstate  commerce.  Nor  does  it  contend  that 
Congress  can  control  the  organization  of  state  corporations  authorized 
by  their  charters  to  engage  in  interstate  and  international  commerce. 
But  it  does  contend  that  Congress  may  protect  the  freedom  of  inter- 
state commerce  by  any  means  that  are  appropriate  and  that  are  lawful, 
and  that  are  not  prohibited  by  the  Constitution.  It  does  contend  that 
no  state  corporation  can  stand  in  the  way  of  the  enforcement  of  the 
national  will  legally  expressed.  [And  thus  although  the  Court  may  not 
dissolve  the  corporation,  it  can,]  by  appropriate  orders,  prevent  the  two 
competing  railroad  companies  here  involved  from  cooperating  with  the 
Securities  Company  in  restraining  commerce  among  the  States.  In 
short,  the  Court  may  make  an  order  necessary  to  bring  about  the  disso- 
lution or  suppression  of  an  illegal  combination  that  restrains  interstate 
commerce.1 

Thus  it  was  made  evident  that  the  majority  of  the  court  intended 
to  construe  the  power  of  Congress  very  broadly  and  also  to  give 
the  terms  of  the  Anti-Trust  Act  a  most  extensive  interpretation. 
By  this  decision  organizations  and  acts  which  in  their  formal 
character  have  nothing  to  do  with  interstate  commerce  are 
brought  under  the  provisions  of  the  Anti-Trust  Act  if  they 
show  a  plan  or  a  capability  of  restraining  interstate  trade.2 

In  1908  the  principles  of  the  act  were  extended  to  a  boycott 
ordered  by  a  labor  union.  In  holding  that  the  boycott  was  illegal 
the  court  had  again  to  point  to  the  general  purpose  of  the  law 
forbidding  restraint  of  trade.  The  act  complained  of,  that  is,  the 
boycott  itself,  was  of  course  operative  within  the  states,  but  the 
effect  of  the  boycott  was  to  restrain  the  trade  in  hats  between 
the  states,  and  as  such  was  an  act  contrary  to  the  terms  of  the 
Anti-Trust  Law,  and  thus  illegal.3 

1 193  U.S.  197,334,335.346. 

2  W.  'W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  Vol.  II, 
PP-  7 57-7 58-  8  Loewe  v.  Lawler,  208  U.  S.  274. 


THE  REGULATION  OF  COMMERCE  509 

Another  interesting  line  of  reasoning  has  been  followed  by 
the  court  in  interpreting  this  act.  It  will  be  remembered  that 
the  title  of  the  act  was  "  An  Act  to  protect  Commerce  against 
Unlawful  Restraints,"  while  the  body  of  the  act  reads  :  "  Every 
contract  ...  in  restraint  of  trade  or  commerce  ...  is  unlawful." 
In  1896  the  court  had  said  : 

Under  these  circumstances  we  are,  therefore,  asked  to  hold  that  the  in  early  in- 
act  of  Congress  excepts  contracts  which  are  not  in  unreasonable  restraint  th^court1011 
of  trade.  ...    In  other  words,  we  are  asked  to  read  into  the  act  by  way  neld  every 
of  judicial  legislation  an  exception  which  is  not  placed  there  by  the  law-  restraint  of 
making  branch  of  the  Government,  and  this  is  to  be  done  upon  the  trade  llle?al 
theory  that  the  impolicy  of  such  legislation  is  so  clear  that  it  cannot  be 
supposed  Congress  intended  the  natural  import  of  the  language  it  used. 
This  we  cannot  and  ought  not  to  do.1 

This  was  opposed  in  an  able  minority  opinion  by  Justice  White 
with  whom  Justices  Field,  Gray,  and  Shiras  concurred.  In  the 
course  of  it  he  said : 

...  To  define,  then,  the  words,  "  in  restraint  of  trade  "  as  embracing  Dissenting 
every  contract  which  in  any  degree  produced  that  effect  would  be  vio-  °Pinion 
lative  of  reason,  because  it  would  include  all  those  contracts  which  are 
the  very  essence  of  trade,  and  would  be  equivalent  to  saying  that  there 
should  be  no  trade  and  therefore  nothing  to  restrain. 

Nevertheless,  the  opinion  of  the  majority  continued  to  be  the  The  "Rule 
reasoning  applied  by  the  court  until  1911.  In  the  Standard  Oil  ^f6* 
case  and  the  American  Tobacco  Company  case  decided  in  that 
year  Justice  White,  now  Chief  Justice,  succeeded  in  bringing 
seven  of  the  justices  to  the  point  of  view  he  had  maintained 
since  1897.  From  an  exhaustive  examination  of  the  common- 
law  definition  of  monopolies  and  contracts  in  restraint  of  trade 
he  came  to  the  conclusion  that  only  contracts  in  unreasonable 
restraint  of  trade  were  held  illegal  by  common  law.  He  then 
held  that  the  Anti-Trust  Law  of  1890  was  drawn  with  this  dis- 
tinction and  meaning  in  mind.  Finally,  he  examined  the  previous 
decisions  of  the  court,  and  asserted  that  although  the  majority  of 
the  court  had  at  times  interpreted  the  act  to  forbid  all  contracts 

1  United  States  v.  Trans-Mis  sottri  Freight  Association,  166  U.S.  290,  340,  351. 


Dissenting 
opinion  of 
Justice 

Harlan 


j 


Effect  of  the 
"Rule  of 
Reason" 


510    THE  GOVERNMENT  OF  THE  UNITED  STATES 

in  restraint  of  trade,  "  every  one  of  those  cases  applied  the  rule 
of  reason  for  the  purpose  of  determining  whether  the  subject 
before  the  court  was  within  the  statute."  1 

This  almost  unanimous  opinion  brought  a  violent  and  elabo- 
rate dissenting  opinion  from  Justice  Harlan.  He  had  consist- 
ently upheld  the  view  that  Congress  had  in  the  act  forbidden 
every  contract  in  restraint  of  trade,  that  the  court  has  no  power 
to  apply  the  rule  of  reason  and  determine  whether  the  contracts 
constituted  undue  restraints.  After  reviewing  the  position  of 
the  court  in  the  previous  cases  and  noting  its  oft-repeated 
assertion  that  the  courts  could  not  amend  an  act  of  Congress, 
he  said : 

Nevertheless,  if  I  do  not  misapprehend  its  opinion,  the  court  has 
now  read  into  the  act  of  Congress  words  which  are  not  to  be  found 
there,  and  has  thereby  done  that  which  it  adjudged  in  1896  and  1898 
could  not  he  done  without  violating  the  Constitution,  namely,  by  inter- 
pretation of  a  statute,  changed  a  public  policy  declared  by  the  legislative 
department.2 

Before  the  court  enunciated  the  "  Rule  of  Reason,"  the  govern- 
ment was  successful  in  proceeding  against  many  large  combina- 
tions. In  most  cases  it  could  be  shown  that  there  was  a  contract 
which  might  be  interpreted  as  a  possible  restraint  of  trade,  and 
the  corporation  was  dissolved.  In  some  cases  the  consolidations 
themselves  dissolved  with  the  consent  of  the  government  in 
order  to  escape  prosecution.3  In  other  cases  which  have  been 
carried  to  the  courts  the  rule  of  reason  has  been  very  justly 
applied.  For  example,  in  the  case  of  the  St.  Louis  Terminal 
Association  in  1912  the  court  held  that  although  there  were 
certain  oppressive  features  which  must  be  eliminated,  the  com- 
bination was  on  the  whole  beneficial  and  reasonable  and  was 
allowed  to  stand.4 

1  221  U.S.  1,68. 

2  221  U.S.  I,  104,  105. 

8  For  example,  the  Western  Union  Telegraph  and  the  American  Telephone 
companies,  and  the  New  York,  New  Haven  &  Hartford  and  the  Boston  &  Maine 
Railroad  companies. 

4  United  States  v.  Tertninal  R.R.  Association  of  St.  Louis,  224  U.  S.  383. 


THE  REGULATION  OF  COMMERCE  511 

PATENTS  AND  COPYRIGHTS 

But  Qther  problems  arose  in  the  enforcement  of  the  Anti-  Monopolies 
Trust  Law.  The  Constitution  gives  to  Congress  power  "  to 
promote  the  progress  of  science  and  useful  arts  by  securing  for  laws 
limited  times  to  authors  and  inventors  the  exclusive  right  to 
their  respective  writings  and  discoveries."1  Under  this  clause 
Congress  has  enacted  the  patent  and  .copyright  laws  which 
establish  temporary  monopolies.  Acting  under  their  assumed 
rights  the  holders  of  patents  and  copyrights  attempted  to  do 
various  things  which  seemed  to  be  in  restraint  of  trade,  for 
example :  (i)  to  force  the  purchaser  of  a  patented  article  to  use 
other  articles  unpatented,  manufactured  by  the  holder  of  the 
patent ;  (2)  to  compel  a  retailer  to  buy  everything  or  nothing  in 
certain  lines  from  the  holder  of  the  patent  in'  order  to  obtain 
the  patented  article ;  (3)  to  fix  the  price  upon  a  patented  article 
and  attempt  to  compel  all  retailers  to  become  mere  agents  of 
the  patentee  in  order  that  the  price  might  be  maintained ;  (4)  to 
refuse  to  sell  to  any  retailer  who  cut  the  fixed  price  of  copy- 
righted books  or  patented  articles.  These  practices  were  obvi- 
ously in  restraint  of  trade  and  hence  forbidden  by  the  Sherman 
Law.  But  what  right  did  the  holders  of  the  patent  or  copyright 
have  ?  The  decisions  of  the  court  have  not  been  consistent  upon 
all  these  points. 

In  1912  the  court  held  that  a  license  restriction  may  lawfully  in  1912  in 
be  imposed  on  the  purchaser  of  a  mimeograph,  that  the  machine  case  t},ce  C0urt 


sold  may  be  used  only  with  the  stencil  paper,  ink,  and  other 
supplies  made  by  the  patentees,  although  they  are  not  patented. 
In  coming  to  this  conclusion  the  court  reasoned  as  follows :  use  of 

patented 

The  property  right  of  a  patented  machine  may  pass  to  a  purchaser 
with  no  right  of  use,  or  with  only  the  right  of  use  in  a  specified  way, 
or  at  a  specified  place,  or  for  a  specified  purpose.  The  unlimited  right 
of  exclusive  use  which  is  possessed  by  and  guaranteed  to  the  patentee 
will  be  granted  if  the  sale  be  unconditional.  But  if  the  right  of  use  be 
confided  by  specific  restriction,  the  use  not  permitted  is  necessarily 
reserved  to  the  patentee.2 

1  Article  I,  Sect,  viii,  clause  8. 

2  Henry  v.  Dick  Co.,  224  U.  S.  I,  24. 


Dissenting 
opinion  of 
Chief 
Justice 
White 


In  1913  the 
court  held 
patentee 
had  no 
right  to 
control 
price  of 
patented 
articles 
after  sale 


512    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Chief  Justice  White,  with  whom  two  other  justices  concurred, 
clearly  brought  out  in  his  dissenting  opinion  the  consequences 
of  such  a  decision  : 

Take  a  patentee  selling  a  patented  engine.  He  will  now  have  the 
right  by  contract  to  bring  under  the  patent  laws  all  contracts  for  coal 
or  electrical  energy  used  to  afford  power  to  work  the  machine,  or 
even  the  lubricants  employed  in  its  operation.  Take  a  carpenter's 
plane.  The  power  now  exists  in  the  patentee  by  contract  to  validly 
confine  a  carpenter  purchasing  one  of  the  planes  to  the  use  of  lumber 
sawed  from  trees  grown  on  the  land  of  a  particular  person,  or  sawed 
at  a  particular  mill.  .  .  .  Take  an  illustration  which  goes  home  to 
everyone,  —  a  patented  sewing  machine.  It  is  now  established  that, 
by  putting  on  the  machine,  in  addition  to  the  notice  of  patent  required 
by  law,  a  notice  called  a  license  restriction,  the  right  is  acquired  as 
against  the  whole  world,  to  control  the  purchase  by  users  of  the 
machine  of  thread,  needles,  and  oil  lubricants  or  other  materials  con- 
venient or  necessary  for  operation  of  the  machine.1 

In  1913  when  the  composition  of  the  court  had  been  altered 
by  new  appointments  the  court  held  a  different  point  of  view. 
This  was  seen  in  the  Sanatogen  case.2  Bauer  and  Company 
made  and  shipped  Sanatogen  in  packages  licensed  for  sale  at 
one  dollar.  Any  sale  in  violation  of  this  condition  was  claimed 
to  be  in  violation  of  their  patent.  O'Donnell  sold  packages  at 
less  than  a  dollar,  whereupon  he  was  sued  for  infringement  of 
patent  rights.  In  deciding  against  Bauer  and  Company  the 
court  said : 

...  It  was  the  intention  of  Congress  to  secure  an  exclusive  right 
to  sell,  and  there  is  no  grant  of  privilege  to  keep  up  prices  and  prevent 
competition  by  notices  restricting  the  price  at  which  the  article  may  be 
resold.  The  right  to  vend  conferred  by  the  patent  law  has  been  exer- 
cised, and  the  added  restriction  is  beyond  the  protection  and  purpose 
of  the  act.  This  being  so,  the  case  is  brought  within  the  line  of  cases 
in  which  this  court  has  from  the  beginning  held  that  a  patentee  who 
has  parted  with  a  patented  machine  by  passing  title  to  a  purchaser 
has  placed  the  article  beyond  the  limits  of  the  monopoly  secured  by 
the  patent  act."  8 

1  Henry  v.  Dick  Co.,  224  U.  S.  j,  55. 

2  Bazterv.  O'Donnell,  229  U.  S.  i. 
8  Ibid,  i,  17. 


THE  REGULATION  OF  COMMERCE  513 

The  same  line  of  reasoning  was  followed  by  the  court  in  the 
case  of  R.  H.  Macy  and  Company  against  the  publishers.1  The 
court  held  that  after  the  book  was  once  sold  to  the  retailer  the 
publisher  had  no  control  over  the  price,  and  that  the  action  of 
the  publishers  in  attempting  to  check  the  supply  of  books  to  a 
retailer  who  cut  prices  was  unjustifiable  and  a  restraint  of  trade 
forbidden  by  the  Sherman  Law. 

So  also  in  1917  the  Dick  case  was  directly  overruled  by  name.2 
The  case  was  similar  in  many  respects  to  the  Dick  case  in  that 
it  showed  an  attempt  on  the  part  of  a  patentee  to  prescribe  the 
use  of  certain  attachments  upon  which  the  patent  had  expired. 
In  deciding  against  the  patentee  the  court  said  : 

Plainly,  the  language  of  the  statute  [the  patent  act]  and  the  estab-  The  Dick 
lished  rules  to  which  we  have  referred  restrict  the  patent  granted  on  oygrruled 
a  machine,  such  as  we  have  in  this  case,  to  the  mechanism  described 
in  the  patent  as  necessary  to  produce  the  described  results.    It  is  not 
concerned  with  and  has  nothing  to  do  with  the  materials  with  which 
or  on  which  the  machine  operates.  .  .  . 

It  is  obvious  that  the  conclusions  arrived  at  in  this  opinion  are  such  that 
the  decision  in  Henry  v.  Dick  Co.  [supra]  must  be  regarded  as  overruled.3 

In  the  case  of  unpatented  articles  the  Miles  Company  had  contracts 

attempted  by  means  of  contracts  with  the  wholesalers  and  retailers  dea^wsein 

to  maintain  the  price  upon  certain  unpatented  secret  remedies.  Article °ted 

These  contracts,  the  company  claimed,  made  the  dealers  the  agents  Jj-J^  Jx 

of  the  Miles  Company.    But  the  court  held  that  the  contracts  the  price, 
operated  as  a  restraint  of  trade  and  were  unlawful  both  at  common 
law  and  as  to  interstate  commerce  under  the  Anti-Trust  Act.4 

In  like  manner,  in  1917,  the  court  held  that  a  patentee  could  Licenses  to 

not  through  the  means  of  a  license  notice,  purporting  to  consti-  whiSfflx 

tute  dealers  agents,  fix  the  price  at  which  the  retailers  should  JJ^f* 
be  obliged  to  sell  the  product.   Thus  Justice  Clark  in  giving  the 
opinion  of  the  court  said  : 

Courts  would  be  perversely  blind  if  they  failed  to  look  through 
such  an  attempt  as  this  license  notice  thus  plainly  is  to  sell  property 

1  Strauss  and  Strait ss  v.  A'me^ican  Publishers  Association,  231  U.  S.  222. 
1  Motion  Picture  Patents  Co.  V.  Universal  Film  Co.,  243  U.  S.  502. 
8  Ibid.  512,  518. 
'  4  Dr.  Miles  Medical  Co.  v.  Park,  220  U.  S.  373. 


514    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Effect  of 
Sherman 
Anti-Trust 
Act 


The  Bureau 
of  Corpora- 
tions 


Regulation 
by  publicity 


for  a  full  price,  and  yet  to  place  restraints  upon  its  further  alienation, 
such  as  have  been  hateful  to  law  from  Lord  Coke's  day  to  ours, 
because  obnoxious  to  public  interest.1 

The  Sherman  Anti-Trust  Act  has  thus  been  a  very  effective 
weapon  in  breaking  up  combinations  and  opening  free  competi- 
tion. As  interpreted  by  the  court  it  forbade  any  attempt  at  price 
fixing  and  demanded  the  possibility  of  absolutely  free  competi- 
tion. If  this  was  the  end  desired,  then  the  law  had  accomplished 
its  purpose.  But  experience  showed  that  price-cutting  is  very 
often  practiced  by  a  certain  class  of  dealers  merely  to  serve  as  an 
advertisement.  The  public  is  at  best  but  temporarily  benefited 
and  that  to  a  very  limited  extent,  while  the  entire  trade  in  the 
articles  is  grievously  dislocated.  The  manufacturers,  moreover, 
are  seriously  disturbed.  They  have  built  up  their  business 
processes  for  the  production  of  an  article  at  a  certain  price. 
They  no  longer  take  advantage  of  price  fluctuations,  but  aim  to 
supply  the  market  2ft  a  constant  price.  In  addition  vast  sums 
of  money  are  spent  in  familiarizing  the  public  not  merely  with 
the  article  but  its  quality,  quantity,  and  its  price.  Much  of  this 
advertisement  is  rendered  worthless  if  the  dealer  can' arbitrarily 
alter  the  prices. 

Besides  the  drastic  method  of  regulation  of  corporations  by 
dissolution  applied  by  the  Sherman  Act,  two  other  methods  of 
regulation  have  been  attempted.  In  1903  the  Department  of 
Commerce  and  Labor  was  created  with  a  Bureau  of  Corpora- 
tions. The  act  required  the  Commissioner  of  Corporations  to 
make  investigations  concerning  the  organization  and  the  conduct 
and  management  of  corporations  engaged  in  interstate  or  foreign 
commerce,  excepting  "  common  carriers."  The  results  of  his 
investigations  were  to  be  transmitted  to  Congress  with  recom- 
mendations for  legislation.  This  act  foreshadowed  two  new 
methods  of  regulation.  First,  the  separation  of  carriers  from 
other  corporations,  vesting  in  the  Interstate  Commerce  Commis- 
sion the  control  of  carriers,  and  second,  the  use  of.  investigation 
and  information  with  its  consequent  publicity  as  a  means  for 
forcing  the  abandonment  of  illegal  or  unjust  practices  and  the 


1  Strauss  v.  Victor  Talking  Machine  Co.,  243  U.S.  490,  500-501. 


THE  REGULATION  OF  COMMERCE  515 

resulting  reformation.  The  Bureau  published  detailed  investiga- 
tions of  some  of  the  largest  industries  of  the  country,  —  steel, 
tobacco,  sugar  refining,  transportation  of  petroleum,  and  so  forth. 
The  effects  of  this  work  were  gratifying.  In  some  cases  the  fact 
that  agents  of  the  Bureau  were  engaged  in  investigation  led  to  a 
change  in  policy ;  while  the  publication  of  the  findings  of  the 
Bureau  hastened  the  movement  for  the  publication  of  frequent 
reports  by  the  largest  industrial  corporations. 

In  1909  a  corporation  tax  was  included  in  the  Tariff  Act  of 
that  year.1  This  required  all  corporations,  whether  engaged  in 
interstate  commerce  or  not,  to  file  with  the  collector  of  internal 
revenue  the  gross  and  net  earnings  and  certain  other  information. 
From  this  information  an  assessment  was  made  upon  corporations 
having  a  net  income  of  over  five  thousand  dollars.  In  1910  this 
tax  produced  over  twenty  million  dollars.  But  in  addition  to  the 
revenue  produced  the  tax  forced  the  corporations  to  give  impor- 
tant information,  which  may  be  made  public  if  the  president  so 
orders.  In  fact  it  was  asserted  that  the  information  acquired,  with 
the  possibility  of  publicity,  would  enable  the  government  to  exert 
considerable  control  over  corporations. 

ADMINISTRATIVE  CONTROL  OF  TRUSTS  AND  COMBINATIONS 

Although  the  Sherman  Anti-Trust  Act  proved  a  drastic  The  Federal 
destroyer  of  combinations,  and  although  the  Bureau  of  Corpora- 
tions  did  good  work  in  bringing  to  light  abuses,  some  method 
of  regulation  was  desired  which  should  be  at  once  regulatory  and 
constructive.  In  transportation  this  has  been  accomplished  by 
the  Interstate  Commerce  Commission  with  its  enlarged  powers. 
It  was  suggested  that  the  same  idea  be  applied  to  industry  and 
trade.  By  the  act  of  September  24,  1914,  a  Federal  Trade  Com- 
mission consisting  of  five  members,  serving  for  five  years,  was 
established.  Unfair  methods  in  competition  and  commerce  were 
declared  unlawful,  and  the  Commission  was  empowered  to  prevent 
persons  and  corporations  from  employing  such  methods.  Banks, 
which  are  now  responsible  to  the  Federal  Reserve  Board,  and 
common  carriers,  which  are  under  the  regulation  of  the  Interstate 

See  p.  451. 


Achieve- 
ments of 
the  Federal 
Trade 
Commission 


516    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Commerce  Commission,  were  excepted  from  the  jurisdiction 
of  the  new  Federal  Trade  Commission.  The  Commission  was 
directed  to  make  investigation  of  complaints  of  unfair  business 
methods  or  to  investigate  on  its  own  initiative.  Whenever  it 
shall  become  convinced  that  any  person,  partnership,  or  corpora- 
tion is  using  unfair  methods,  it  shall  serve  a  complaint  upon  the 
offender  and,  after  hearings,  issue  an  order  directing  the  offender 
to  abstain  from  the  act  complained  of.  The  Commission  may 
appeal  to  the  Circuit  Court  of  Appeals  for  the  enforcement  of 
its  orders,  and  its  decisions  and  orders  are  also  reviewable  in  that 
court  upon  appeal.  The  findings  of  the  Commission,  however, 
if  supported  by  testimony,  are  conclusive,  that  is,  binding  upon 
the  court.  It  is  important  to  remember  that  this  Commission, 
unlike  the  Interstate  Commerce  Commission,  has  little  construc- 
tive power.  Its  orders  and  decrees  do  not  relieve  a  corporation 
from  the  penalties  of  the  Sherman  Law  as  interpreted  by  the 
courts  in  the  decisions  just  examined. 

In  the  few  years  that  the  Commission  has  been  in  operation 
it  has  accomplished  a  great  deal.  Part  of  its  work  in  the  nature 
of  investigation  and  publication  of  the  information  has  been 
severely  criticized  but,  nevertheless,  something  has  been  accom- 
plished. Another  function,  which  receives  less  publicity  and 
whose  importance  is  little  realized,  is  the  remedying  of  abuses, 
sometimes  of  a  very  minor  nature,  and  putting  an  end  to  un- 
just complaints.  In  thus  acting,  the  Commission  has  adopted 
the  following  procedure  :  A  complaint  is  received,  and  the  other 
party  notified  of  it.  If  it  is  remedied,  as  it  frequently  is,  the 
matter  is  ended.  Some  questions,  however,  require  discussions 
by  the  Commission,  in  which  the  law  upon  the  case  is  ex- 
amined and  expounded.  As  a  result  a  "  conference  ruling  "  is 
made,  which  in  the  majority  of  cases  ends  the  matter.  If,  how- 
ever, the  Commission  finds  that  the  principle  involved  is  of 
great  importance,  it  may  make  its  own  investigation,  hold  hear- 
ings upon  the  formal  "  complaint,"  and  as  a  result  issue  an 
"  order."  The  great  advantage  which  this  procedure  has  shown 
is  that  it  furnishes  a  quick  and  inexpensive  method  of  remedy- 
ing wrongs,  that  it  avoids  litigation,  and  makes  clear  the  true 
principles  of  the  law. 


THE  REGULATION  OF  COMMERCE  517 

The  decisions  of  the  court  concerning  trusts  and  cembina-  The  ciayton 
tions  which  have  just  been  examined  were  somewhat  modified  U£1~Trust 
and  the  entire  subject  of  trust  legislation  revised  by  the  pas- 
sage of  the  Clayton  Act,   October   15,   1914.    The  twenty-five 
sections  of  this  act  can  be  most  conveniently  grouped  under 
six  divisions. 

Price  discrimination   is  forbidden  when  such  discrimination  (i)  Price 
would  tend   "substantially"  to  lessen  competition  or  create  a  ticn™ 
monopoly.    Price  discrimination  does  not,  however,  prevent  dis-  forbidden 
crimination  in  price  because  of  grade,  quality,  or  quantity,  or  cost 
of  selling,  or  discrimination  between  communities  made  in  good 
faith  to  meet  competition.    Neither  does  it  prevent  persons  en- 
gaged in  selling  goods  from  selecting  their  own  customers  in 
bona  fide  transactions  and  not  in  restraint  of  trade. 

In  the  case  of  the  Great  Atlantic  and  Pacific  Tea  Company  [price 
against  the  Cream  of  Wheat  Company,  decided  July  21,  1915, 
this  action  has  received  judicial  interpretation.  The  Cream  of 
Wheat  Company  advertised  that  it  would  not  sell  to  retailers  or  court] 
directly  to  the  consumers  but  only  through  wholesalers  and  job- 
bers. It  also  recommended  that  the  retail  price  to  the  con- 
sumer be  fourteen  cents  a  package.  The  Great  Atlantic  and 
Pacific  Tea  Company  was  at  first  treated  by  the  Cream  of  Wheat 
Company  as  a  wholesaler,  notwithstanding  that  it  sold  directly  to 
the  consumer.  In  1915,  however,  the  Great  Atlantic  and  Pacific 
Tea  Company  advertised  Cream  of  Wheat  at  less  than  the  recom- 
mended price,  whereupon  the  Cream  of  Wheat  Company  refused 
to  sell  any  more  of  its  product  to  the  Great  Atlantic  and  Pacific 
Tea  Company.  The  Great  Atlantic  and  Pacific  Tea  Company 
thereupon  asked  for  an  injunction  against  the  Cream  of  Wheat 
Company,  on  the  ground  that  its  action  was  in  violation  of  both 
the  'Sherman  Law  and  the  Clayton  Act.  In  the  District  Court 
Justice  Hough  in  refusing  to  grant  the  injunction  said : 

Section  2  [of  the  Clayton  Law]  plainly  identifies  the  lessening  of  com- 
petition with  restraint  of  trade.  .  .  .  But  price  discrimination  is  only  for- 
bidden when  it  "  substantially  "  lessens  competition.  Construing  the 
whole  section  together  the  last  section  reads  in  effect  that  a  "  vendor 
may  select  his  own  bona  fide  customers  providing  the  effect  of  such 
selection  is  not  to  substantially  and  unreasonably  restrain  trade." 


5i8    THE  GOVERNMENT  OF  THE  UNITED  STATES 


(2)  Sale  of 

patented 

articles 


[Dick  case 
reversed] 


How*  it  can  be  called  substantial  and  unreasonable  restraint  of  trade 
to  refuse  to  deal  with  a  man  who  avowedly  is  to  use  his  dealing  to  injure 
the  vendor ;  when  said  vendor  makes  and  sells  only  such  an  advertise- 
ment-begotten article  as  Cream  of  Wheat,  whose  fancy  name  needs  the 
nursing  of  carefully  handled  sales  to  maintain  an  output  of  trifling 
moment  in  the  food  market,  is  beyond  my  comprehension.1 

The  Circuit  Court  of  Appeals  at  New  York  upheld  the  action 
of  the  lower  court  in  refusing  the  injunction,  basing  its  ruling 
on  the  fact  that  the  Cream  of  Wheat  Company  had  the  right 
to  refuse  to  sell  to  retailers,  and  that  the  Great  Atlantic  and 
Pacific  Tea  Company  was  a  retailer. 

This  interpretation,  if  followed  by  the  Supreme  Court  may 
somewhat  modify  the  reasoning  already  explained  in  the  Miles 
case.  It  tends  to  show  that  the  lower  courts,  at  least,  regard 
the  Clayton  Act  as  allowing  price  fixing,  provided  such  price 
fixing  does  not  "  substantially  "  lessen  competition. 

The  third  section  of  the  act  is  in  the  nature  of  the  legislative 
revision  of  the  decision  in  the  Dick  case.2  It  will  be  remembered 
that  the  court  there  held  that  the  vendor  of  a  patented  article 
might  sell  his  article  on  the  condition  that  only  such  other 
articles  as  he  specified  were  used  with  it.  This  section  pro- 
hibits the  selling  or  leasing  of  articles,  whether  patented  or 
unpatented,  on  the  condition  that  the  purchaser  or  lessee  shall 
not  use  goods  or  supplies  of  a  competitor  where  the  effect  of 
such  a  condition*  would  be  to  lessen  competition  substan- 
tially or  to  create  a  monopoly.  There  is  room  for  judicial  in- 
terpretation as  to  whether  or  not  a  specific  conditional  lease 
does  actually  lessen  competition  substantially ;  but  the  purport 
of  the  section  is  to  sustain  the  dissenting  minority  in  the 
Dick  case  and  to  uphold  the  reasoning  of  the  majority  in  the 
Sanatogen  case. 

It  also  should  be  remembered  that  the  court  has  specifically 
reversed  its  ruling  on  the  Dick  case,  and  that  upon  independent 
reasoning  and  not  upon  this  section  of  the  law.3 

1  American  Year  Book  (1915),  pp.  349,  350.    See  also  an  exhaustive  discus- 
sion of  this  case  by  Sumner  H.  Slichter,  "  The  Cream  of  Wheat  Case,"  American 
Political  Science  Quarterly,  Vol.  XXXI,  p.  392. 

2  See  p.  511.  »  see  p.  513. 


THE  REGULATION  OF  COMMERCE  519 

Section  6  is  aimed  at  a  recall  of  the  decision  in  the  Danbury  (3)  Appiica- 
Hatters  case.*    In   this  case  it  will   be  remembered  that  the 
anti-trust  laws  were  invoked  against  a  labor  union  in  the  case 


of  a  boycott.    In  the  Clayton  Law  it  is  specifically  declared  "  that  tions 

r        i  ...  .   .        J  ,    forbidden 

the  labor  of  a  human  being  is  not  an  article  or  commodity  of 
commerce,"  and  that  "  nothing  contained  in  the  anti-trust  laws 
shall  be  construed  to  forbid  the  existence  of  labor,  agricultural, 
or  horticultural  organizations  from  carrying  out  the  legitimate 
objects  thereof  ;  nor  shall  such  organization,  or  the  members 
thereof,  be  held  or  construed  to  be  illegal  combinations  or  con- 
spiracies in  restraint  of  trade  under  the  anti-trust  laws." 

Corporations  engaged  in  commerce  are  forbidden  to  acquire  (4)  con- 
the  whole  or  a  part  of  the  stock  of  other  corporations  where  the  JSa^com"8 
effect  would  be  to  lessen  competition  substantially.    Exceptions  binatlons 
are  allowed  in  the  acquisitions  of  stock  for  investment  and  not 
for  the  purpose  of  control  ;  and  in  the  formations  of  subsidiary 
companies  and  feeders  for  the  lines  of  common  carriers. 

Investigation    showed    that    many   banks    and    corporations,   (5)  inter- 
nominally  in   competition,  had  boards  of  directors  containing  directorates 
many  of  the  same  persons.    Moreover,  certain  companies  sold 
securities   to   or   bought   supplies   from   banks  or  corporations 
which  had  large  representation  upon  both  boards.    Sections  8 
and  10  of  the  Clayton  Act  attempt  to  check  this. 

Any  person  who  is  injured  by  anything  forbidden  in  the  anti-  (e)  Enforce- 
trust  laws  may  sue  in  the  court  of  the  district  where  the  defendant 
resides,  or  is  found,  or  has  an  agent,  without  respect  to  the 
amount  in  the  controversy,  and  may  recover  threefold  damages 
and  a  reasonable  attorney's  fee  if  his  suit  is  sustained.  The 
carrying  out  of  the  administrative  provisions  of  the  act  are  vested, 
for  banks,  in  the  Federal  Reserve  Board  ;  for  common  carriers, 
in  the  Interstate  Commerce  Commission  ;  for  other  corporations, 
.in  the  Federal  Trade  Commission.  Cases  are  taken  directly  to 
the  Circuit  Court  of  Appeals,  which  is  directed  to  expedite  them 
and  give  them  precedence. 

In  both  the  Trade  Commission  Act  and  the  Clayton  Act,  the 
Commission  and  the  court  are  forbidden  to  relieve  or  absolve 
any  person  from  any  liability  under  the  anti-trust  laws.  Thus 

1  Loewe  v.  Lawlor,  see  p.  508. 


520    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Effect  of 
the  Trade 
Commission 
and  Clayton 
Act  on 
business 


it  would  appear  that  the  policy  of  the  government  is  still  largely 
of  a  prohibitive  or  negative  nature  and  that  little  advance  has 
been  made  towards  providing  a  body  which  can  engage  in  con- 
structive regulation.  Such  a  commission  should  be  able  to  do 
what  the  court  has  done  in  applying  the  rule  of  reason,  namely, 
authorize  harmless  or  beneficial  combinations,  perhaps  allow  price 
fixing  in  cases  where  it  seemed  beneficial,  and  have  power  to 
approve  of  practices  which  it  deemed  were  not  unfair.  As  it 
is,  the  order  of  the  Commission  gives  no  legal  immunity.  The 
case  may  be  carried  to  the  courts  and  the  same  principles  applied 
as  in  the  application  of  the  Sherman  Law.  In  one  sense,  how- 
ever, these  laws  are  of  great  importance  and  advantage.  They 
provide  for  close  and  frequent  supervision,  and  the  mere  .pub- 
licity of  their  investigations  and  hearings  will  do  much  to  prevent 
unfair  practices  and  perhaps  to  influence  public  opinion  in  favor 
of  a  more  constructive  policy. 


CHAPTER  XX 

THE  EXERCISE  OF  THE  POLICE  POWER  BY 
THE  FEDERAL  GOVERNMENT 

The  Supreme    Court  has  briefly  defined  the  police  powers  The  police 
as  "  .  .  .  nothing  more  nor  less  than  the  powers  of  government  power 
inherent  in  every  sovereignty  .  .  .  that  is  to  say,  .  .  .  the  power 
to  govern  men  and  things."  1 

The  federal  government,  being  one  of  delegated  powers  and  The  police 
this  power  not  being  delegated,  it  is  consequently  left  with  the  Xrentin 
states.    It  cannot  be  taken  from  them,  either  in  whole  or  in  part,  the  states 
and  exercised  by  Congress.    All  that  the  federal  government  can 
do  is  to  see  that  the  states  exercise  this  power  under  the  limita- 
tions of  the  Constitution  and  do  not,  under  the  guise  of  exercising 
it,  encroach  upon  the  field  granted  to  the  national  government.2 

But  if  the  police  power  be  the  power  of  government,  Congress  congress 
must  possess  this  power  in  the  fields  which  are  delegated  to  it  ^rcise 
for  control.    Congress,  therefore,  while  possessing  no  general  p^efin6 
police  power,  has,  in  exercising  its  right  of  controlling  commerce  those  fleMs 
and  the  other  functions  granted  to  it,  the  right  to  enact  measures  to  it 
for  the  government  of  these  functions  ;  and  these  measures  may 
affect  the  health,  safety,  and  morals  not  only  of  persons  engaged 
in  the  conduct  of  these  functions  but  of  the  people  at  large. 
Thus,  while  it  seems  unlikely  that  Congress  could,  for  example, 
establish  a  universal  eight-hour  day  for  all  persons  engaged  in 
industry,  yet  it  can  place  and  has  placed  limitations  upon  the 
hours  of  labor  of  those  engaged  in  interstate  commerce.    So  also 
while  a  state  has  not  the  power  to  prevent  the  immigration  of 
the  Chinese,  yet  Congress  through  its  control  over  immigration 
has  not  only  excluded  the  Chinese  but  has  enacted  regulations 
for  the  protection  of  immigrant  women  after  they  have  settled 

1  License  Cases,  5  How.  504,  583. 

2  See  T.  M.  Cooley,  Limitations  (6th  ed.),  pp.  705-707- 

521 


522    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Congress 
may  not 
exercise 
the  police 
power 
generally 
but  only  in 
those  fields 
it  controls 


Interstate 
commerce 
legislation 


within  the  states.  Again,  although  Congress  cannot  prevent  the 
publication  of  obscene  or  libelous  matter,  it  may  exclude  the  same 
from  the  mails. 

A  very  considerable  number  of  statutes  have  been  passed  in 
which  it  appears  that  Congress  is  exercising  a  federal  police 
power.  On  examination,  however,  it  will  be  found  that  this 
police  power  is  never  exerted  because  Congress  possesses  such 
a  general  power  but  solely  because  Congress  has  been  given 
certain  fields  of  action,  in  which,  having  absolute  power,  it  may 
legislate  concerning  the  health  and  morals  of  the  people  in  those 
fields.  In  other  words,  within  the  fields  of  delegated  powers 
Congress  may  exercise  a  police  power. 

Without  attempting  to  enumerate  all  these  statutes  the  follow- 
ing classification  will  show  the  extent  to  which  legislation  of  this 
kind  has  been  carried. 

GENERAL  POLICE  REGULATIONS.  FOR  THE  CONDUCT  OF 
INTERSTATE  COMMERCE 

Under  this  head  would  naturally  be  found  all  the  legislation 
concerning  interstate  railroads,  rates,  and  rebates,  and  the  anti- 
trust laws,  the  latest  example  of  which  is  the  Clayton  Act.  These 
have  just  been  discussed  in  the  previous  chapter  and  need  not! 
be  reexamined.  They  were  passed  under  the  power  of  Congress 
to  regulate  commerce  but  contain,  none  the  less,  many  provisions 
which  are  in  the  nature  of  pure  police  regulations. 

POLICE  REGULATIONS  CONCERNING  THOSE  ENGAGED  IN 
INTERSTATE  COMMERCE 

An  example  of  the  legislation  concerning  those  engaged  in 
interstate  commerce  is  found  in  the  Safety  Appliance  Act  of 
1893  with  its  various  amendments.  This  act,  which  originally 
required  that  all  trains  employed  in  interstate  commerce  should 
be  supplied  with  certain  automatic  safety  appliances,  was  sustained 
in  1904  and  I9O7.1  In  1903  an  amendment  applied  the  pro- 
visions of  the  act  to  all  trains  and  vehicles  used  on  any  railroads 

1  Johnson  v.  Southern  Pacific  R.  R.  Co.,  196  U.  S.  I  ;  and  (1907)  St.  Louis,  Iron 
Mountain  &  Southern  R.  R.  Co.  v.  Taylor,  210  U.S.  281. 


THE  EXERCISE  OF  THE  POLICE  POWER          523 

engaged  in  interstate  commerce.   In  191  1  the  court,  in  upholding 
the  amended  act,  said  :  ^ 

We  come  then  to  the  question  whether  these  acts  are  within  the   [Upheld  by 
power  of  Congress  under  the  commerce  clause  of  the  Constitution, 


considering  that  they  are  not  confined   to  vehicles  used  in  moving  to  both 

.     .  .  .    D    interstate 

interstate  traffic.  ...  Is  there  a  real  or  substantial  relation  or  connection  and  intra- 


between  what  is  required  by  these  acts  in  respect  of  vehicles  used  in 
moving  intrastate  traffic,  and  the  object  which  the  acts  obviously  are  because  of 
designed  to  attain,  namely,  the  safety  of  interstate  commerce  and  of  dependence 
those  who  are  employed  in  its  movement  ?  .  .  .  Both  classes  of  traffic  of  tne  tw°] 
are  at  times  carried  in  the  same  car  and  when  this  is  not  the  case  the 
cars  in  which  they  are  carried  are  frequently  commingled  in  the  same 
train  and  in  the  switching  and  other  movements  at  terminals.  .  .  .  Be- 
sides, the  several  trains  on  the  same  railroad  are  not  independent  in 
point  of  movement  and  safety,  but  are  interdependent,  for  whatever 
brings  delay  or  disaster  to  one,  or  results  in  disabling  one  of  its  opera- 
tives, is  calculated  to  impede  the  progress  and  imperil  the  safety  of  other 
trains.    And  so  the  absence  of  appropriate  safety  appliances  from  any 
part  of  any  train  is  a  menace  not  only  to  that  train  but  to  others.1 

In   1906  Congress  passed  an  act  intended  to  alter  the  old  (a)  Em- 
common-law  relations  between  employers  and  their  employees.  Liability 
The  statute  made  interstate  carriers  liable  for  damages  for  the  Actotl** 
death  or  injury  of  "  any  "  of  their  employees  resulting  from  neg- 
ligence on  the  part  of  the  employers,  or  the  insufficiency  of  the 
equipment  ;  it  altered  the  old  common-law  rule  in  that  it  allowed 
the  employee  to  recover,  although  the  injury  had  been  the  result 
of  negligence  on  the  part  of  another  employee  or  upon  his  own 
part.    This  act  applied  to  "  any  "  employees  in  every  carrier 
'engaged  in  interstate  or  foreign  commerce. 

In  1907  the  court  held  that  although  Congress  had  the  power  [Heiduncon- 
to   alter    common-law  rules    concerning    the   relation    between  bytte 
employers  and  their  employees,  the  act  under  consideration,  in  courtJ 
applying  its  regulations  to  "  any  "  employee  and  to  "  any  "  of  the 
officers  of  the  carriers,  touched  not  only  those  engaged  in  inter- 
state commerce  but  also  those  who  were  engaged  in  purely  intra- 
state commerce.    The  act  was  therefore  a  regulation  of  intrastate 
commerce  which  was  beyond  the  power  of  Congress  to  make, 

1  Southern  Railway  Co.  v.  United  States,  222  U.S.  20,  26,  27. 


524    THE  GOVERNMENT  OF  THE  UNITED  STATES 

and  therefore  invalid.1  This  decision,  coming  in  1907,  four  years 
before  the  Safety  Appliance  Act  decision  just  examined,  was  a 
five-to-four  decision,  and  represented  a  condition  of  the  court 
which  was  quite  common  before  it  attained  greater  unanimity 
with  the  appointments  made  by  President  Taft. 

In  1908  Congress  attempted  to  meet  these  objections  and 
reenacted  the  law  of  1906,  making  it  apply  only  to  those  injuries 
suffered  by  employees  while  engaged  by  an  interstate  carrier  in 
interstate  commerce.  In  this  form  the  law  was  upheld  by  a 
unanimous  decision  in  1911.  It  was  there  said: 

This  power  over  commerce  among  the  states,  so  conferred  upon 
Congress,  is  complete  in  itself,  extends  incidentally  to  every  instrument 
and  agent  by  which  commerce  is  carried  on,  may  be  exerted  to  its 
utmost  extent  over  every  part  of  such  commerce,  and  is  subject  to  no 
limitations  save  such  as  are  prescribed  in  the  Constitution.  But,  of 
course,  it  does  not  extend  to  any  matter  or  thing  which  does  not  have 
a  real  or  substantial  relation  to  some  part  of  such  commerce. 

The  court  then  shows  that  employees  do  have  such  a  real  and 
substantial  relation  to  commerce  and  holds  that 

Congress  may  regulate  the  relations  of  common  carriers  by  railroad  and 
their  employees,  while  both  are  engaged  in  such  commerce,  subject 
always  to  the  limitations  prescribed  in  the  Constitution,  and  to  the 
qualification  that  the  particulars  in  which  those  relations  are  regulated 
must  have  a  real  or  substantial  connection  with  the  interstate  commerce 
in  which  the  carriers  and  their  employees  are  engaged.2 

In  1907  Congress  passed  an  act  limiting  the  hours  of  the 
various  classes  of  labor  employed  upon  interstate  carriers. 
These  limitations  varied  from  nine  in  twenty-four  for  those 
employed  as  dispatchers  to  sixteen  in  twenty-four  for  trainmen. 
Various  periods  of  rest  were  also  required.  This  law  was  claimed 
to  operate  not  solely  upon  interstate  commerce  but  upon  intra- 
state  commerce  as  well.  In  upholding  the  law,  Justice  Hughes 
said  upon  this  point : 

1  Howard  v.  Illinois  Cent.  R.  R.  Co.  (the  Employers'  Liability  Cases),  207 
U.  S.  463. 

2  Mondou  v.  N.  K,  N.H.  &>  Hartford  R.R.  Co.  (Second  Employers'  Liability 
Cases),  223  U.S.  i,  47,  48,  49. 


THE  EXERCISE  OF  THE  POLICE  POWER          525 

This  consideration,  however,  lends  no  support  to  the  contention  that  [congress 
the  statute  is  invalid.    For  there  cannot  be  denied  to  Congress  the  SJS/Jf*1 
effective  exercise  of  its  constitutional  authority.    By  virtue  of  its  power  service  of 
to  regulate  interstate  and  foreign  commerce,  Congress  may  enact  laws 
for  the  safeguarding  of  the  persons  and  property  that  are  transported  J 
in  that  commerce,  and  of  those  who  are  employed  in  transporting  them. 
.  .  .    The  fundamental  question  here  is  whether  a  restriction  upon  the 
hours  of  labor  of  employees  who  are  connected  with  the  movement  of 
trains  in  interstate  transportation  is  comprehended  within  this  sphere  of 
authorized  legislation.     The  question  admits  of  but  one  answer.    The 
length  of  hours  of  service  has  direct  relation  to  the  efficiency  of  the 
human  agencies  upon  which  protection,  of  life  and  property  necessarily 
depends.  .  .  .    And  in  imposing  restrictions  having  reasonable  relation   [This  reguia- 
to  this  end  there  is  no  interference  with  liberty  of  contract  as  guar- 


anteed  by  the  Constitution.    If  then  it  be  assumed,  as  it  must  be,  that  ty  the  re- 
in the  .furtherance  of  its  purpose  Congress  can  limit  the  hours  of  labor  intrastate 
of  employees  engaged  in  interstate  transportation,  it  follows  that  this   duties] 
power  cannot  be  defeated  either  by  prolonging  the  period  of  service 
through  other  requirements  of  the  carriers,  or  by  the  commingling  of 
duties  relating  to  interstate  and  intrastate  operations.1 

In  1916  Congress  was  forced  to  carry  this  principle  even  [The 
farther.  A  general  strike  on  all  the  railroads  of  the  country 
was  threatened,  and  neither  the  roads  nor  the  unions  could 
come  to  an  agreement.  At  the  urgent  request  of  President  wages] 
Wilson  Congress  passed  the  Adamson  Act,  which  fixed  eight 
hours  as  the  standard  for  a  day's  work,  directed  that  a  com- 
mittee be  appointed  to  investigate  the  question  of  wages,  and 
enacted  that  pending  the  report  of  such  a  committee  and  for 
thirty  days  thereafter  the  compensation  of  railroad  employees 
be  not  reduced  below  the  rate  then  in  force.  The  law  was  thus 
a  law  fixing  the  hours  of  labor  and  the  wages  as  well.  Had 
Congress  this  power?  The  court  in  1917  held  that  it  had.2  In 
the  majority  opinion  prepared  by  Chief  Justice  White  it  was  said  : 

.  .  .  That  the  business  of  common  carriers  by  rail  is  in  a  sense  a  public  [Railroads 
business  because  of  the  interest  of  society  in  the  continued  operation  J^SUs* 
and  rightful  conduct  of  such  business  and  that  the  public  interest  begets  subject  to 
a  public  right  of  regulation  to  the  full  extent  necessary  to  secure  and  regulation] 

1  B.  &  O.  R.  R.  Co.  v.  Interstate  Commerce  Commission,  221  U.  S.  612,  618,  619. 

2  Wilson  v.  New,  243  U.S.  332,  347-348- 


526    THE  GOVERNMENT  OF  THE  UNITED  STATES 


[The  employer 
and  employee 
may  come  to 
an  agreement 
as  to  wages] 


[In  case  of 
failure  so  to 
do  Congress 
may  fix 
wages  to 
avoid  injury 
to  interstate 
commerce] 


(4)  Arbitra- 
tion 


protect  it,  is  settled  by  so  many  decisions,  ...  as  to  leave  no  room  for 
question  on  the  subject.  It  is  also  equally  true  that  as  the  right  to  fix 
by  agreement  between  the  carrier  and  its  employees  a  standard  of 
wages  to  control  their  relations  is  primarily  private,  the  establishment 
and  giving  effect  to  such  agreed-on  standard  is  not  subject  to  be  con- 
trolled or  prevented  by  public  authority.  But  taking  all  these  propo- 
sitions as  undoubted,  if  the  situation  which  we  have  described  and  with 
which  the  act  of  Congress  dealt  be  taken  into  view,  that  is,  the  dispute 
between  the  employers  and  employees  as  to  a  standard  of  wages,  their 
failure  to  agree,  the  resulting  absence  of  such  standard,  the  entire 
interruption  of  interstate  commerce  which  was  threatened,  and  the 
infinite  injury  to  the  public  interest  which  was  imminent,  it  would  seem 
inevitably  to  result  that  the  power  to  regulate  necessarily  obtained  and 
was  subject  to  be  applied  to  the  extent  necessary  to  provide  a  remedy 
for  the  situation,  which  included  the  power  to  deal  with  the  dispute,  to 
provide  by  appropriate  action  for  a  standard  of  wages  to  fill  the  want 
of  one  caused  by  the  failure  to  exert  the  private  right  on  the  subject, 
and  to  give  effect  by  appropriate  legislation  to  the  regulations  thus 
adopted. 

An  act  of  1888,  replaced  by  acts  of  1898  and  1913,  provided 
for  a  system  of  arbitration  in  cases  of  serious  labor  disputes.  It 
is  to  be  noted  that  the  use  of  the  machinery  here  created  is  not 
obligatory,  nor  have  the  Board  of  Mediation  or  the  boards  of 
arbitration  any  compulsory  power.  There  are  no  cases,  there- 
fore, on  which  the  court  could  express  its  opinion  as  to  the  con- 
stitutionality of  such  an  act.  Nevertheless  the  Board  has  done 
good  work.  It  consists  of  a  Commissioner  of  Mediation  and  two 
other  officials  who,  when  an  interruption  of  interstate  traffic  is 
imminent,  may  "offer  their  services,  or  act  upon  the  application 
of  either  party.  'The  Board  attempts  to  bring  about  a  settlement 
of  the  dispute,  but  failing  in  that,  attempts  to  induce  both  parties 
to  agree  to  arbitration.  If  this  is  done  a  board  of  arbitration  of 
three  or  six  members  is  appointed,  both  parties  signing  agree- 
ments to  continue  in  peaceable  relations  until  the  award  is  made. 
Within  ten  days  after  the  filing  of  the  award  either  party  may 
appeal  to  the  Circuit  Court  of  Appeals.  This  procedure  has 
been  highly  successful.  In  1913  the  Board  settled  an  impending 
railroad  strike  and  has  had  equal  success  in  averting  others, 
although  it  failed  in  1916. 


THE  EXERCISE  OF  THE  POLICE  POWER          527 

The  act  just  considered  made  it  a  crime  for  an  employer  to  (5)  Member- 
discriminate  unjustly  against  an  employee  of  an  interstate  carrier  uboVunions 
because  of  his  being  a  member  of  a  labor  union.    In  reversing 
a  conviction  of  a  lower  court,  and  dismissing  the  case  because 
of  the  unconstitutionality  of  the  law,  Justice  Harlan  said  : 

.  .  .  Manifestly,  any  rule   prescribed   for   the   conduct  of  interstate  [Court  holds 

commerce,  in  order  to  be  within  the  competency  of  Congress  under  foiVsuch 

the  power  to  regulate  commerce  among  the  states,  must  have  some  relation 

real  or  substantial  relation  to  or  connection  with  the  commerce  regu-  interstate 


lated  ...  we  hold  that  there  is  no  such  connection  between  interstate     nmir 
commerce  and   membership  in  a  labor  organization  as   to    authorize  bershipin 
Congress  to  make  it  a  crime  against  the  United  States  for  an  agent  l^to  anow8 
or  -an  interstate  carrier   to  discharge   an  employee  because  of   such  congress  to 
membership  on  his  part.    If  such  a  power  exists  in  Congress  it  is  diffi-  "tme  to* 


cult  to  perceive  why  it  might  not,  by  absolute  regulation,  require  inter- 
state  carriers,  under  penalties,  to  employ  in  the  conduct  of  its  interstate   such 
business  only  members  of  labor  organizations,  or  only  those  who  are  D 
not  members  of    such  organizations,  —  a  power  which  could  not  be 
recognized  as  existing  under  the   Constitution  of  the  United  States. 
No  such  rule  of  criminal  liability  as  that  to  which  we  have  referred  can 
be  regarded  as,  in  any  just  sense,  a  regulation  of  interstate  commerce.1 

POLICE  REGULATIONS  FOR  THE  GENERAL  PUBLIC 
Legislation  of  this  class  is  the  most  dubious  of  all  the  so-called  Police  regu- 

,.,.,.  11^  T      •         i      •  i          lations  for 

police  legislation  passed  by  Congress.  It  is  obvious  tq  say  that  general 
the  conduct  of  interstate  business  can  be  naturally  regulated  by  pttbl] 
Congress,  and  it  is  logical  to  hold  that  the  control  of  commerce 
may  include  the  regulation  of  the  instrumentalities  of  commerce  ; 
thus  the  kind  of  legislation  just  considered  may  be  regarded  as 
reasonable  regulations.  But  the  class  of  legislation  now  to  be  con- 
sidered deals  not  so  much  with  the  commerce  itself  as  with  the 
effect  such  commerce  would  have  upon  the  public.  Since,  more- 
over, this  effect  is  always  operative  within  state  lines,  legislation  of 
this  sort  most  seriously  interferes  with  the  police  regulations  of  the 
various  states.  Nevertheless,  it  is  in  this  field  that  the  most  re- 
cent and  far-reaching  powers  have  been  exercised.  Certain  typical 
statutes  with  the  decisions  of  the  court  may  be  taken  as  examples. 

1  Adatrv.  United  States,  208  U.  S.  161,  178-180. 


528    THE  GOVERNMENT  OF  THE  UNITED  STATES 

In  response  to  popular  demand,  excited  partly  by  investiga- 
tions and  partly  by  sensational  charges,  Congress  in  1906  passed 
the  Food  and  Drugs  Act.  This  act  was  designed  to  guar- 
antee the  purity,  character,  quality,  and  quantity  of  food  and 
drugs.  It  prohibited  the  use  of  deleterious  preservatives,  required 
the  inspection  of  all  meats,  the  analysis  of  all  drugs  and  com- 
pounds, and  a  correct  branding  of  the  article,  together  with  its 
net  weight  and  a  statement  whether  it  contained  preservatives  or 
certain  dangerous  habit-forming  drugs.  This  most  extensive 
police  regulation  was  passed  in  accordance  with  the  power  of 
Congress  to  regulate  commerce.  All  adulterated  or  misbranded 
articles  were  denied  access  to  commerce,  both  foreign  and  inter- 
state, and  heavy  penalties  were  prescribed  for  those  who  should 
violate  the  provisions  of  the  act. 

The  constitutionality  of  the  law  was  affirmed  in  igio.1  But 
certain  sections  of  the  law  have  been  so  interpreted  by  the  court 
as  to  require  amendment.  This  was  particularly  true  of  section  8. 
This  declares  that  an  article  should  be  deemed  to  be  mis- 
branded  when  "  the  package  or  label  .  .  .  shall  bear  any  state- 
ment, design  or  device  regarding  such  article  .  .  .  which  shall 
be  false  or  misleading  in  any  particular.  ..."  In  applying  this 
section  the  lower  court  was  upheld  by  the  Supreme  Court  in  its 
contention  that  false  and  misleading  statements  referred  to  the 
identity  of  the  drugs  rather  than  to  the  curative  properties  of 
the  compound.2  Hence  the  door  remained  open  for  quacks  and 
purveyors  of  nostrums  to  make  false  and  misleading  statements 
concerning  the  curative  qualities  of  their  preparations  and  thus 
to  stimulate  their  sales. 

As  a  result  the  law  was  amended  in  1912,  punishing  as  mis- 
branding  "  any  statement,  design  or  device  regarding  the  curative 
or  therapeutic  effect  of  such  an  article  .  .  .  which  is  false  and 
fraudulent."  This  was  upheld  by  the  court  in  1915. 3  This  case 
involved  the  following  label,  "  Effective  as  a  preventative  for 
Pneumonia.  We  know  it  has  cured  and  that  it  has  and  will  cure 
Tuberculosis." 

1  Hipolite  Egg  Co.  v.  United  States,  220  U.  S.  45. 

2  United  States  v.  Johnson,  221  U.  S.  488. 

8  Seven  Cases  v.  United  States,  239  U.  S.  510. 


THE  EXERCISE  OF  THE  POLICE  POWER          529 

After  disposing  of  various  technical  objections,  Justice  Hughes,   [upheld  by 
who  had  dissented  in  the  Johnson  case  just  cited,  met  the  con-  * 
tention  that  the  act  deprived  the  owners  of  their  property  with- 
out due  process  of  law.    This  contention  was  made  upon  the 
ground  that  the  statute  entered  "the  field  of  opinion  and  by 
virtue  of   consequent   uncertainty  operated  as  a  deprivation  of 
liberty  and  property  without  due  process  of  law.  ..."    Justice 
Hughes  reasoned  as  follows : 

It  cannot  be  said,  for  example,  that  one  who  should  put  inert  matter 
or  a  worthless  composition  in  the  channels  of  trade,  labeled  or  described 
in  an  accompanying  circular  as  a  cure  for  disease  when  he  knows  it  is 
not,  is  beyond  the  reach  of  the  law-making  power.  Congress  recog- 
nized that  there  was  a  wide  field  in  which  assertions  as  to  the  curative 
effect  are  in  no  sense  honest  expressions  of  opinion  but  constitute  abso- 
lute falsehoods  and  in  the  nature  of  the  case  can  be  deemed  to  have 
been  made  only  with  fraudulent  purpose.  The  amendment  of  1912 
applies  to  this  field  and  we  have  no  doubt  of  its  validity.1 

Other  sections  of  the  law  have  been  uniformly  upheld  by  the 
court,  and  the  statute  has  proved  most  beneficial.  Although  it 
is  an  obvious  exercise  of  the  police  power,  yet  its  operation  has 
such  a  natural  connection  with  the  commerce  clause,  through 
which  it  acts,  that  little  objection  can  be  found  to  the  reasoning 
used  by  the  court  to  uphold  it.  It  is  true  that  it  does  involve 
some  encroachment  upon  the  field  of  state  regulation  and 
forces  state  laws  to  conform  with  it,  yet  popular  opinion  has 
enthusiastically  supported  this  encroachment. 

In  1895  Congress  prohibited  the  transfer  of  lottery  tickets  by  (a)  Lot- 
means  of  interstate  carriers.     In   1899  one  Champion  sent  by  fotte?yand 
express  a  box  containing  two  such  tickets  from  Texas  to  Cali-  tickets 
fornia,  whereupon  he  was  arrested,  tried,  and  found  guilty.    On 
appeal  to  the  Supreme  Court  the  constitutionality  of  the  act  was 
questioned  but  upheld  by  the  court.    In  coming  to  this  decision 
the  court  made  an  exhaustive  survey  of  the  decisions  concern- 
ing the  regulation  of  commerce,  particularly  those  laws  which 
seemed  to  be  police  regulations. 

It  was  held  by  the  counsel  for  Champion  that  the  test  of  the  [champion 
validity  of  the  statute  was  its  real  not  its  apparent  object;    and  v'Am 

1  Seven  Cases  v.  United  States,  239  U.  S.  518. 


[Lottery 
tickets  are 
subjects  of 
commerce] 


[No  one  has 
the  liberty 
to  introduce 
into  com- 
merce an 
element 
injurious  to 
public 
morals] 


[Congress 
may  make  it 
a  criminal 
offense  to 
introduce 
lottery 
tickets  into 
interstate! 
commerce] 


[Lotteries 
held  to  be 
injurious 
to  public 
morals] 


530    THE  GOVERNMENT  OF  THE  UNITED  STATES 

that  the  one  under  consideration  was  not  to  regulate  commerce 
but  to  suppress  lotteries ;  that  commerce  meant  commercial 
intercourse,  and  that  lottery  tickets  were  not  articles  of  commer- 
cial intercourse ;  and  that  the  suppression  of  lotteries  was  a 
police  function  which  Congress  did  not  possess.  After  exam- 
ining the  previous  cases,  many  of  which  have  just  been  dis- 
cussed, the  court  came  to  the  conclusion  that  commerce  meant 
intercourse  or  traffic  in  its  widest  sense,  and  thus : 

We  are  of  the  opinion  that  lottery  tickets  are  subjects  of  traffic  and 
therefore  are  subjects  of  commerce,  and  the  regulation  of  the  carriage 
of  such  tickets  from  state  to  state,  at  least  by  independent  carriers,  is 
a  regulation  of  commerce  among  the  several  states.1 

The  court  then  reaffirmed  the  reasoning  that  the  power  to 
regulate  included  the  power  to  prohibit,  and  asserted  that  no 
one  was  deprived  of  his  liberty  by  such  a  prohibition : 

But  surely  it  will  not  be  said  to  be  a  part  of  anyone's  liberty,  as  recog- 
nized by  the  supreme  law  of  the  land,  that  he  shall  be  allowed  to  intro- 
duce into  commerce  among  the  states  an  element  confessedly  injurious 
to  the  public  morals.  ...  As  a  state  may,  for  the  purpose  of  guarding 
the  morals  of  its  own  people,  forbid  all  sales  of  lottery  tickets  within 
its  limits,  so  Congress,  for  the  purpose  of  guarding  the  people  of  the 
United  States  against  the  "  widespread  pestilence  of  lotteries  "  and  to 
protect  the  commerce  which  concerns  all  the  states,  may  prohibit  the 
carrying  of  lottery  tickets  from  one  state  to  another.  ...  If  the  carry- 
ing of  lottery  tickets  from  one  state  to  another  be  interstate  com- 
merce, and  if  Congress  is  of  the  opinion  that  an  effective  regulation 
for  the  suppression  of  lotteries  carried  on  through  such  commerce, 
is  to  make  it  a  criminal  offense  to  cause  lottery  tickets  to  be  carried 
from  one  state  to  another  we  know  of  no  authority  in  the  courts 
to  hold  that  the  means  thus  devised  are  not  appropriate  and  neces- 
sary to  protect  the  country  at  large  against  a  species  of  interstate 
commerce  which,  although  in  general  use  and  somewhat  favored  in 
both  national  and  state  legislation  in  the  early  history  of  the  country, 
has  grown  into  disrepute,  and  has  become  offensive  to  the  entire 
people  of  the  nation.  It  is  a  kind  of  traffic  which  no  one  can  be 
entitled  to  pursue  as  of  right.2 


1  Champion  v.  Ames,  188  U.S.  321,  354. 

2  Ibid.  188  U.  S.  357-358. 


THE  EXERCISE  OF  THE  POLICE  POWER          531 

In  answer  to  the  contention  that,  if  Congress  possessed  the 
power  to  exclude  lottery  tickets  from  commerce,  this  power 
might  be  used  arbitrarily,  the  court  said : 

It  will  be  time  enough  to  consider  the  constitutionality  of  such  legis-   [The  court 
lation  when  we  must  do  so.  ...   We  may,  however,  repeat,  in  this  con-  JJ^^rVi- 
nection,  what  the  court  has  heretofore  said,  that  the  power  of  Congress  trary  use  of 
to  regulate  commerce  among  the  states,  although  plenary,  cannot  be  by^ongress] 
deemed  arbitrary,  since  it  is  subject  to  such  .limitations  or  restrictions 
as  are  prescribed  by  the  Constitution.    This  power,  therefore,  may  not 
be  exercised  so  as  to  infringe  rights  secured  or  protected  by  that  instru- 
ment. ...    If  what  is  done  by  Congress  is  manifestly  in  excess  of  the 
powers  granted  to  it,  then  upon  the  courts  will  rest  the  duty  of  adjudging 
that  its  action  is  neither  legal  nor  binding  upon  the  people.1 

This  decision  is  most  far-reaching.     It  contains  an  assertion  [significance 
that  Congress  actually  does  possess  a  police  power,  through  the  °^Ssion : 
means  of  interstate  commerce,  over  the  people  of  the  United 
States.     Other  laws  have  been  examined  which  exercised  the  (a)  By  the 
police  power  over   methods  of  conducting  commerce,  or  over  ?eguiate° 


those  engaged  in  that  commerce,  and  statutes  have  been  upheld 
in  which  the   police  power  was  utilized  to   prevent  traffic   in 
articles  which  were  deleterious  or  dishonest  in  themselves.    This  power  over 
decision  goes  even  farther  and  asserts  that  Congress  has  the  of  the r 
power  to  make  regulations  for  the  morals  of  the  people  by  deny-  people 
ing  interstate  commerce  facilities  to  such  articles,  harmless  in 
themselves,  as  may  be  used  for  purposes  which  Congress  holds 
are  "confessedly  injurious  to  the  public  morals."   Although  tech- 
nically not  intrenching  upon  the  police  power  reserved  to  the 
states,  to  regulate  for  themselves  the  morals  of  their  citizens, 
this  decision  actually  does  so.    With  the  enormous  development 
of   commercial   intercourse    and   the   inextricable    mingling    of 
intrastate   and   interstate   commerce,   to   deny  to  any  form  of 
traffic  the  access  to  interstate   commerce  is  practically  to  pro- 
hibit and  suppress  that  traffic.    This  is  what  the  law  did.    The   WnEoxften- 
reasoning  of  the   court,   logically  following  the  precedents  in  powerof 
previous  cases,  upheld  this  law,  but  in  so  doing  allowed  a  wide 
extension  of  the  power  of  the  national  government.    Not  merely 
was  the  power  of  the  national  government  extended  but  it  was 

i  Champion  v.  Ames,  188  U.  S.  362-363. 


(c)  Court 
will  decide 
whether 
Congress 
has  acted 
properly] 


(3)  Immi- 
gration 
laws  and 
the  protec- 
tion of 
immigrant 
women 


[In  1908 
court  held 
that  Con- 
gress could 
not  protect 
the  morals 
of  immi- 
grant 
women] 


532    THE  GOVERNMENT  OF  THE  UNITED  STATES 

extended  into  fields  hitherto  regarded  as  belonging  peculiarly  to 
the  states  —  the  field  of  private  morality. 

In  another  particular  this  decision  is  interesting.  If  Congress 
may  declare  lotteries  immoral  and  deny  them  access  to  inter- 
state commerce,  may  not  Congress  continue  to  extend  this 
power  until  it  "  arbitrarily  excludes  from  commerce  among  the 
states  any  article,  commodity  or  thing,  of  whatever  kind  or  nature, 
or  however  useful  or  valuable,  which  it  may  choose,  no  matter 
with  what  motive,  to  declare  that  it  shall  not  be  carried  from  one 
state  to  another  "  ?  The  answer  to  this  question  has  been  given 
by  the  court.  The  Constitution  limits  this  right  and  the  courts 
will  enforce  those  limits.  But  in  the  light  of  later  decisions  to 
be  examined  it  may  well  be  wondered  what  these  limits  actually 
are  when  subjected  to  judicial  interpretation.  To  many  this  de- 
cision seems  to  have  gone  beyond  all  reasonable  interpretation 
of  the  constitutional  limits  prescribed  by  the  Constitution. 

The  right  of  Congress  to  control  immigration  into  the  United 
States  has  already  been  discussed.  But  Congress  has  gone  even 
farther.  In  1907  a  law  was  enacted  for  the  purpose  of  protecting 
immigrant  women,  by  which  it  was  made  a  felony  for  any  person  to 
keep,  maintain,  or  control,  for  an  immoral  purpose,  an  alien  woman 
within  three  years  after  she  had  entered  the  United  States. 

In  1908  the  court  held  this  act  unconstitutional  because  it  was 
an  exercise  of  the  police  power  by  means  not  delegated  by  the 
Constitution  to  Congress.  In  the  course  of  the  opinion  it  was  said  : 

That  there  is  a  moral  consideration  in  the  special  facts  of  this  case, 
that  the  act  charged  is  within  the  scope  of  the  police  power,  is  imma- 
terial, for,  as  stated,  there  is  in  the  Constitution  no  grant  to  Congress 
of  the  police  power.  And  the  legislation  must  stand  or  fall  according 
to  the  determination  of  the  question  of  the  power  of  Congress  to  con- 
trol generally  dealings  of  citizens  with  aliens.  In  other  words,  an 
immense  body  of  legislation,  which  heretofore  has  been  recognized  as 
peculiarly  within  the  jurisdiction  of  the  states,  may  be  taken  by  Con- 
gress away  from  them.  Although  Congress  has  not  largely  entered  into 
this  field  of  legislation  it  may  do  so,  if  it  has  the  power.  Then  we  should 
be  brought  face  to  face  with  such  a  change  in  the  internal  conditions  of 
this  country  as  was  never  dreamed  by  the  framers  of  the  Constitution.1 

1  Keller  v.  United  States,  213  U.  S.  138,  148-149. 


THE  EXERCISE  OF  THE  POLICE  POWER          533 

To  this  reasoning  Justices  Holmes,  Harlan,  and  Moody  dis- 
sented. To  their  minds  it  seemed  that  if  Congress  could  forbid 
the  entry  and  order  the  deportation  of  immoral  women,  it  could 
punish  those  who  cooperated  in  their  fraudulent  entry.  The 
law  to  them  was  thus  but  a  legitimate  method  of  controlling 
immigration. 

In  1910  the  White  Slave  Traffic  Act1  attempted  to  meet  [The  white 
the  objections  of  the  majority  of  the  court.  Agreements  had 
been  entered  into  by  the  United  States  and  several  of  the  Euro- 
pean nations  for  the  suppression  of  this  traffic.  Consequently 
Congress  was  able  to  take  advantage  of  the  suggestion  made  in 
1908  by  the  court  that  some  method  of  regulation  might  be 
allowed  by  treaty.  Therefore  section  6  of  the  act  provides  for 
the  registration  of  certain  information  called  for  by  the  treaties. 
Failure  to  file  this  information  is  severely  punished,  and  as 
deportation  of  the  alien  may  follow  the  furnishing  of  this  informa- 
tion it  would  appear  that  the  traffic,  as  regards  immigrant 
women,  had  received  a  severe  blow. 

But  the  law  goes  farther  than  this.  It  makes  it  a  felony  for 
any  person  knowingly  to  transport,  or  cause  to  be  transported, 
or  to  persuade,  entice,  or  furnish  transportation  for  any  woman 
or  girl  for  an  immoral  purpose  in  foreign  or  interstate  commerce. 
Thus  the  act  brings  the  matter  squarely  under  the  jurisdiction 
of  the  commerce  clause  which  has  had  such  a  far-reaching 
interpretation. 

It  was  objected   that   the    commerce    clause  was  not  broad  [upheld  by 
enough  to  cover  this  case.    This  was  quickly  disposed  of  by  the 
court  in  these  words:  "The  power  is   direct;  there  is   not  a 


word  of  limitation  in  it,  and  its  broad  and  universal  scope  has  power  is 

/;  universal] 

been  so  often  declared  as  to  make  repetition  unnecessary.    ' 

It  was  claimed  that  the  law  was  contrary  to  the  clause  of  the 
Constitution  which  guaranteed  the  citizens  of  each  state  the 
privileges  and  immunities  of  the  citizens  in  the  several  states. 
To  this  the  court  replied  : 

It  is  said  that  it  is  the  right  and  privilege  of  a  person  to  move 
between  states,  and  that  such  being  the  right,  another  cannot  be  made 

1  36  Stat.  at  Large,  825. 

2  Hoke  v.  United  States,  227  U.  S.  308,  320. 


534    THE  GOVERNMENT  OF  THE  UNITED  STATES 


[No  absolute 
right  to 
interstate 
commerce] 


guilty  of  the  crime  of  inducing  or  assisting  or  aiding  in  the  exercise  of 
it,  and  "  that  the  motive  or  intention  of  the  passenger,  either  before 
beginning  the  journey,  or  during,  or  after  completing  it,  is  not  a  matter 
of  interstate  commerce."  The  contentions  confound  things  important 
to  be  distinguished.  It  urges  a  right  exercised  in  morality  to  sustain  a 
right  to  be  exercised 'in  immorality.  .  ..  .* 

This  means  that  no  one  has  an  absolute  right  to  interstate 
commerce,  but  that  all  persons  and  things  connected  with  it  are 
dependent  upon  the  regulations  of  Congress. 

It  was  next  urged  that  the  states,  through  their  police  power, 
had  control  of  the  morals  of  their  citizens.  To  this  the  court 
answered : 

.  .  .  There  is  unquestionably  a  control  in  the  states  over  the  morals 
of  their  citizens,  and  it  may  be  admitted,  it  extends  to  make  prostitu- 
tion a  crime.  It  is  a  control,  however,  which  can  be  exercised  only 
within  the  jurisdiction  of  the  states,  but  there  is  a  domain  which  the 
states  cannot  reach  and  over  which  Congress  alone  has  power ;  and 
if  such  power  be  exerted  to  control  what  the  states  cannot,  it  is  an 
argument  for  —  not  against  —  its  legality.  Its  exertion  does  not: 
encroach  upon  the  jurisdiction  of  the  states.2 

And  finally  the  court  said : 

[Congress  The  principle  established  by  the  cases  is  the  simple  one,  when  rid 

pohce^egu-  °^  confusing  and  distracting  considerations,  that  Congress  has  power 
lations  in  the  over  transportation  among  the  several  states ;  that  the  power  is  corn- 
commerce]  plete  in  itself,  and  that  Congress,  as  an  incident  to  it,  may  adopt  not; 

only  means  necessary  but  convenient  to  its  exercise,  and  the  means 

may  have  the  quality  of  police  regulations.3 


[The  act 
does  not 
encroach 
upon  the 
jurisdiction 
of  the  states] 


(4)  The  Child 
Labor  Law 
of  1916 


The  doctrine  laid  down  in  the  Lottery  and  White  Slave  cases 
has  been  applied  by  Congress  to  the  question  of  child  labor.  In 
1916  an  act  was  passed  prohibiting  from  commerce  the  product 
of  any  quarry  or  mine  in  which  children  under  sixteen  years  of 
age  were  allowed  to  work  ;  and  all  products  of  factories,  canneries, 
and  so  forth,  in  which  children  under  fourteen  were  allowed  to 
work  at  all,  and  those  in  which  children  between  fourteen  and 
sixteen  were  allowed  to  work  over  eight  hours  a  day  or  more 
than  forty-eight  hours  a  week.  This  bill  on  its  face  made  no 

1  Hoke  v.  Smith,  227  U.  S.  320-321.  2  Ibid.  321.  3  Ibid.  333. 


THE  EXERCISE  OF  THE  POLICE  POWER          535 

attempt  to  regulate  commerce.  It  was  a  police  measure,  pure  and 
simple,  passed  under  the  power  which  Congress  possesses  to 
regulate  commerce.  As  has  been  shown,  judicial  interpretation 
allows  regulation  to  include  control  and  prohibition  of  commerce  ; 
and  it  is  upon  these  interpretations  that  Congress  relied. 

On  June  3,  1918,  the  court  in  a  five-to-four  decision  held  that  [Heiduncon- 
this  act  was  unconstitutional.   Part  of  the  reasoning  is  as  follows  :  s 

In  Gibbons  v.  Ogden,  Chief  Justice  Marshall,  speaking  for  this  court,  [Held  that 
and  defining  the  extent  and  nature  of  the  commerce  power  said,  "  it  is  congress 

the  power  to  regulate  ;  that  is,  to  prescribe  the  rule  bv  which  commerce  was  to  COQ- 
i  ,,    T          i  .      J  trol,  not  to 

is  to  be  governed."    In  other  words,  the  power  is  one  to  control  the  destroy, 

means  by  which  commerce  is  carried  on,  which  is  directly  the  contrary  commerce] 
of  the  assumed  right  to  forbid  commerce  from  moving  and  thus  destroy 
it  as  to  particular  commodities.  But  it  is  insisted  that  adjudged  cases  in 
this  court  establish  the  doctrine  that  the  power  to  regulate  given  to 
Congress  incidentally  includes  the  authority  to  prohibit  the  movement 
of  ordinary  commodities  and  therefore  that  the  subject  is  not  open  for 
discussion.  The  cases  demonstrate  the  contrary.  They  rest  upon  the 
character  of  the  particular  subjects  dealt  with  and  the  fact  that  the  scope 
of  governmental  authority,  state  or.  national,  possessed  over  them,  is 
such  that  the  authority  to  prohibit  is  as  to  them  but  the  exertion  of  the 
power  to  regulate. 

The  Lottery  case,  the  Pure  Food  Law,  the  White  Slave  cases  are 
then  examined,  and  the  court  continues  : 

In  each  of  these  instances  the  use  of  interstate  transportation  was   [TO  prevent 
necessary  to  the  accomplishment  of  harmful  results.    In  other  words,   JJgJJttion 
although  the  power  over  interstate  transportation  was  to  regulate,  that  may  involve 
could  only  be  accomplished  by  prohibiting  the  use  of  the  facilities  of  l 
interstate  commerce  to  effect  the  evil  intended. 

This  element  is  wanting  in  the  present  case.    The  thing  intended  to   [The  law 
be  accomplished  by  this  statute  is  the  denial  of  the  facilities  of  interstate  Jugulate 
commerce  to  those  manufacturers  in  the  states  who  employ  children  \r*°bpu°trta~ 
within  the  prohibited  ages.    The  act  in  its  effect  does  not  regulate  trans-  cina  labor] 
portation  among  the  states,  but  aims  to  standardize  the  ages  at  which 
children  may  be  employed  in  mining  and  manufacturing  within  the  states. 
The  goods  shipped  are  of  themselves  harmless.  .  .  . 

Commerce  "  consists  of  intercourse  and  traffic  .  .  .  and  includes  the  [Manufac- 
transportation  of  persons  and  property,  as  well  as  the  purchase,  sale  and  commerce] 
exchange  of  commodities."  The  making  of  goods  and  the  mining  of  coal 


536    THE  GOVERNMENT  OF  THE  UNITED  STATES 


[Congress 
may  control 
commerce 
but  not 
manufac- 
ture in 
the  states] 


are  not  commerce,  nor  does  the  fact  that  these  things  are  to  be  after- 
wards shipped,  or  used  in  interstate  commerce,  make  their  production 
a  part  thereof. 

The  grant  of  power  to  Congress  over  the  subject  of  interstate  com- 
merce was  to  enable  it  to  regulate  such  commerce,  and  not  to  give  it 
authority  to  control  the  states  in  their  exercise  of  the  police  power  over 
local  trade  and  manufacture.  .  .  . 

In  interpreting  the  Constitution  it  must  never  be  forgotten  that  the 
Nation  is  made  up  of  states  to  which  are  intrusted  the  powers  of  local 
government.  And  to  them  and  to  the  people  the  powers  not  expressly 
delegated  to  the  National  Government  are  reserved.  ...  To  sustain  this 
statute  would  not  be,  in  our  judgment,  a  recognition  of  the  lawful  exer- 
tion of  congressional  authority  over  interstate  commerce,  but  would 
sanction  an  invasion  by  the  federal  power  on  the  control  of  a  matter 
purely  local  in  its  character,  and  over  which  no  authority  has  been  dele- 
gated to  Congress  in  conferring  the  power  to  regulate  commerce  among 
the  states.1 

OTHER  METHODS  OF  EXERCISING  POLICE  POWER 

In  order  to  make  police  regulations  Congress  has  invoked  the 
power  granted  by  the  Constitution  2  to  establish  post  offices  and 
post  roads.  Consistent  interpretation  has  held  that  this  includes 
the  power  to  maintain,  operate,  and  regulate  the  postal  agencies 
of  the  United  States.  These  are  not  confined  to  those  "  known 
or  in  use  when  the  Constitution  was  adopted,  but  keep  pace  with 
the  progress  of  the  country  and  adapt  themselves  to  the  new 
developments  of  time  and  circumstances."  3 

The  actual  organization  of  the  Post-Office  Department,  together 
with  an  account  of  its  operation,  has  been  discussed.  But  the 
grant  has  been  held  to  include  the  power  to  regulate  the  postal 
service,  and  in  the  execution,  of  this  Congress  has  exercised 
police  power.  Statutes  have  been  passed  prohibiting  and  closing 
the  mails  to  immoral,  indecent,  scurrilous,  and  defamatory  post 
cards ;  and  to  all  matter  of  an  obscene  or  immoral  nature,  and 

1  Hammer  v.  Dagenhart,  247  U.  S.  251,  269,  270,  271,  272,  273,  275,  276.    See 
a  criticism  of  this  decision  in  T.  R.  Powell,  "  The  Child  Labor  Law,  the  Tenth 
Amendment  and  the  Commerce  Clause,"  in  Southern  Law  Quarterly  (August, 
1918),  Vol.  Ill,  pp.  175-202. 

2  Article  I,  Sect,  viii,  clause  7. 

3  Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  96  U.S.  I,  9. 


THE  EXERCISE  OF  THE  POLICE  POWER          537 

to  all  matter  concerning  lotteries  or  attempts  to  obtain  money 
by  fraudulent  methods  or  false  pretenses. 

In  1877  the  constitutionality  of  the  whole  matter  was  discussed.1 
It  was  shown  that  Congress  had  from  the  establishment  of  the  Post 
Office  prescribed  what  should  be  mailable,  and  that  this  power  had 
never  been  questioned,  but  that  difficulties  arose  in  its  enforcement. 

Letters  and  sealed  packages  of  this  kind  in  the  mail  are  as  fully   [Letters  in 
guarded  from  examination  and  inspection,  except  as  to  their  outward  *£*  only  be 
form  and  weight,  as  if  they  were  retained  by  the  parties  forwarding  them   opened  by 
in  their  own  domiciles.    The  constitutional  guaranty  of  the  right  of  the 
people  to  be  secure  in  their  papers  against  unreasonable  searches  and 
seizures  extends  to  their  papers,  thus  closed  against  inspection  wherever 
they  may  be.  Whilst  in  the  mail,  they  can  only  be  opened  and  examined 
under  like  warrant.  .  .  . 

Nor  can  any  regulations  be  enforced  against  the  transportation  of 
printed  matter  in  the  mail  ...  so  as  to  interfere  in  any  manner  with  the 
freedom  of  the  press. 

Whilst  regulations  excluding  matter  from  the  mails  cannot  be  enforced   [Regulations 
in  a  way  which  would  require  or  permit  an  examination  into  letters  or 


sealed  packages  subject  to  letter  postage,  without  warrant  .  .  .  they  may  depositing 
be  enforced  ...  in  other  ways  ;  as  from  the  parties  receiving  the  letters  receiving 
or  packages,  or  from  agents  depositing  them  in  the  post  office,  or  others  maill 
cognizant  of  the  facts.   And  as  to  objectionable  printed  matter,  which  is 
open  to  examination,  the  regulations  may  be  enforced  in  a  similar  way. . . . 

In  excluding  various  articles  from  the  mail,  the  object  of  Congress   [congress 
has  not  been  to  interfere  with  the  freedom'  of  the  press,  or  with  any 


other  rights  of  the  people  ;  but  to  refuse  its  facilities  for  distribution  of  matter 

deemed 
matter  deemed  injurious  to  the  public  morals.  injurious] 

The  only  question  for  our  determination  relates  to  the  constitution- 
ality of  the  act,  and  of  that  we  have  no  doubt. 

The  constitutional  principles  thus  laid  down  have  been  affirmed  [Fraud 
in  subsequent  cases.     In  regard  to  the  issuance  of  the  so-called 
"  fraud  orders  "  by  the  Postmaster-General,  several  questions  con- 
cerning his  administrative  procedure  have  arisen  which  have  been 
discussed,  but  the  general  principle  has  been  sustained. 

In  1917  the  Espionage  Act2  forbade  the  transmission  of  in-   [Espionage 
formation  concerning  the  national  defense  to  enemies  of  the 

1  In  re  Jackson,  96  U.S.  727,  733,  735,  736>  737- 

2  65th  ^ong.,  Public  Act  24,  June  15,  1917. 


538    THE  GOVERNMENT  OF  THE  UNITED  STATES 

United  States  and  the  circulation  of  false  reports  and  statements 
likely  to  interfere  with  the  affairs  of  the  United  States,  while 
the  Trading  with  the  Enemy  Act l  authorized  the  president  to 
establish  a  censorship  on  messages  between  the  United  States 
and  any  foreign  country. 

The  right  to  establish  post  offices  includes  the  right  to  protect 
the  mails.  In  1894  it  was  held  that  the  government  might  appeal 
to  the  courts  for  equitable  relief  (injunctions)  or  utilize  force  to 
prevent  the  unlawful  and  forcible  interference  with  the  mails.2 

Many  of  the  internal  revenue  taxes  have  been  levied  only 
partially  for  revenue,  and  some  were  enacted  for  the  express 
purpose  of  exercising  police  powers.  Thus  the  imposition  of  an 
excise  tax  of  10  per  cent  upon  all  notes  issued  by  state  banks 
was  not  for  revenue  purposes  but  for  the  purpose  of  giving  the 
new  national  bank  notes  the  monopoly  of  the  field.  This  act  was 
upheld  by  the  court  on  the  ground  that  it  was  within  the  acknowl- 
edged power  of  Congress  to  levy  such  a  tax,  and  that  the 
judiciary  could  not  impose  limitations  upon  the  acknowledged 
powers  of  Congress,  and  finally  that  it  was  a  means  of  regulating 
the  currency.3 

In  1912,  under  the  title  "An  Act  to  provide  for  a  Tax  upon 
White  Phosphorus  Matches  and  for  Other  Purposes  .  .  .  ,"  4 
Congress  levied  a  prohibitive  excise  tax  of  two  cents  a  hundred, 
thereby  effectually  preventing  the  manufacture  or  export  of  such 
matches  —  a  thing  impossible  under  the  power  given  to  regulate 
commerce.  Although  the  constitutionality  of  this  act  has  not 
yet  been  questioned,  the  court  will  have  good  precedent  for 
sustaining  it  in  its  decision  upholding  a  tax  of  ten  cents  a  pound 
upon  artificially  colored  oleomargarine.5  In  this  case  the  court 
examined  at  length  other  taxes  of  similar  nature,  and  quoted 
with  approval  the  words  of  Chief  Justice  Fuller  regarding  a 
similar  tax  of  1886  : 

The  tax  before  us  is,  on  its  face,  an  act  for  levying  taxes,  and 
although  it  may  operate  in  so  doing  to  prevent  deception  in  the  sale  of 

1  65th  Cong.,  Public  Act  91,  October  6,  1917. 

2  In  re  Debs,  158  U.  S.  564. 

8  Veazie  Bank  v.  Fenno,  8  Wall.  533. 

4  37  Stat.  at  Large,  Part  I,  p.  81. 

5  McCray  v.  United  States,  195  U.  S.  27. 


THE  EXERCISE  OF  THE  POLICE  POWER          539 

oleomargarine  as  and  for  butter  its  primary  object  must  be  assumed 
to  be  the  raising  of  revenue.1 

By  the  use  of  the  doctrine  thus  established  in  these  cases 
Congress  might  adopt  many  regulative  measures  in  fields  outside 
of  those  actually  granted  by  the  Constitution.  It  opens  up  the 
use  of  the  taxing  power  of  the  government  as  a  means  for 
federal  police  regulation,  and  thus  vastly  extends  the  sphere  of 
activity  of  the  federal  government. 

The  attempt  to  prohibit  child  labor  was  again  made  in  1919.  [child  labor] 
This  time  the  taxing  power  of  the  government  was  invoked. 
The  net  profits  of  all  mines  employing  children  under  sixteen 
and  of  all  factories  employing  children  under  fourteen  years  of 
age  were  subjected  to  a  tax  of  10  per  cent.  This  law  is  now 
before  the  courts,  where  its  constitutionality  is  being  questioned. 

1  In  re  A'ollock,  165  U.  S.  526. 


CHAPTER  XXI 

FOREIGN  AFFAIRS 

congress  The  direction  of  foreign  affairs,  as  has  been  shown,  is  chiefly 

powers^n  in  the  hands  of  the  president  and  his  appointees.  Nevertheless, 
affair?  Congress  in  general,  and  the  Senate  in  particular,  exercises 
very  important  functions  in  determining  how  these  shall  be 
conducted.  The  whole  Department  of  State  is  the  result  of 
congressional  action,  and  the  determination  of  the  kind  of  repre- 
sentation the  United  States  shall  have  and  the  salaries  to  be 
paid  are  all  matters  for  Congress  to  decide.  So,  too,  the  assent 
of  the  Senate  must  be  obtained  for  every  appointment  made  by 
the  president,  and  no  treaty  can  be  ratified  without  the  consent 
of  two  thirds  of  the  senators.  Furthermore,  most  treaties  require 
some  money  to  carry  into  effect  their  provisions,  and  this  can 
only  be  obtained  by  the  joint  action  of  both  Houses.  Thus  no 
proper  idea  of  the  conduct  of  foreign  affairs  can  be  gained 
without  remembering  what  has  been  said  about  the  organization 
and  procedure  of  both  Houses  of  Congress.  Furthermore,  it 
should  be  emphasized  that  in  foreign  affairs,  in  sharp  contradis- 
tinction to  domestic  affairs,  the  initiative  is  with  the  president, 
and  what  power  Congress  has  can  be  used  only  affirmatively  to 
carry  out  hfs  plans  or  negatively  in  opposition  to  him. 

THE  AGENCIES  BY  WHICH  FOREIGN  AFFAIRS  ARE  CONDUCTED 

The  The  Department  of  State  is  the  executive  department  which 

ofe<steltery  is  charged  with  foreign  affairs.  At  the  head  is  the  Secretary 
of  State,  sometimes  called  the  premier,  although  he  has  none  of 
the  functions  which  are  usually  associated  with  that  title. 
Legally  he  is  on  a  par  with  the  rest  of  his  colleagues  in  the 
cabinet,  and  the  department  over  which  he  presides  is  the 
smallest  of  all  the  executive  departments.  Nevertheless,  because 
of  the  importance  of  foreign  affairs,  particularly  during  the  first 
years  after  the  organization  of  the  government,  his  position  is* 

540 


FOREIGN  AFFAIRS  541 

actually  more  weighty  and  influential  than  that  of  any  other 
secretary.  Qne_  reason  for  this  is  the  great  independence  the 
president  has  in  foreign  affairs1  and  the  confidential  relation 
which  the  secretary  must  bear  to  his  chief.  Although  less 
hampered  by  congressional  interference  than  the  other  depart- 
ments, the  Department  of  State  and  its  Secretary  are  more 
subject  to  presidential  control  than  the  other  departments. 

Another  reason  for  the  importance  of  the  Secretary  of  State  character  of 
is  in  the  character  of  the  appointees.  At  one  period  the  position  appomte€ 
of  Secretary  of  State  was  thought  to  be  the  stepping-stone  to 
the  presidency  ;  at  another  brief  period  it  was  offered  to  the 
president's  nearest  rival  for  the  party  nomination ;  but  in  all 
these  periods  the  secretaries  have  been  men  of  national  reputa- 
tion and  prominence.  Their  ability  and  experience  may  have 
been  derived  in  diplomacy,  administration,  or  in  some  profession 
in  private  life,  or  very  often  gained  in  politics.  But  from  what- 
ever source  the  experience  has  been  gained,  the  secretaries 
have  usually  been  the  most  influential  men  in  the  cabinet.  The 
names  of  J.  Q.  Adams,  Webster,  Seward,  Hay,  Root,  and  Bryan 
will  indicate  the  varied  attainments  which  some  of  the  more 
well-known  secretaries  have  displayed. 

For  the  conduct  of  foreign  affairs  the  department  is  organized  qrgamza- 
into  three  bureaus :  the  Bureau  of  Index  and  Archives,  which  Department 
takes  charge  of  all  the  correspondence  of  the  department  and  ofstate 
prepares   the  annual  volume  of   foreign  relations ;  the  Diplo- 
matic  Bureau ;  and  the  Consular  Bureau. 

The  diplomatic  service  of  the  United  States  has  developed  The 
slowly  and  in  many  respects  is  lightly  if  not  humorously  regarded 
by  other  nations.  At  present  it  consists  of  thirteen  ambassadors, 
and  thirty-one  ministers,  accredited  to  the  principal  countries  of 
the  world.2  In  addition  there  are  charge's  d'affaires,  secretaries  of 
legations,  and  numerous  minor  officials  and  employees.  Contrary 
to  European  custom  the  service  is  neither  permanent  nor  pro- 
gressive. The  officials,  as  far  down  as  the  secretaries  of  lega- 
tion, are  presidential  appointees,  and  all  are  subject  to  frequent 

1  See  p.  199. 

2  Since   the    United  States    entered  the    World  War  there  have  been,  no 
ambassadors  to  Austria-Hungary,  Germany,  and  Turkey. 


542 


THE  GOVERNMENT  OF  THE  UNITED  STATES 


change.  Most  of  the  appointments  are  regarded  as  rewards  for 
political  service,  and  the  more  prominent  ones  are  the  highest 
prizes  at  the  disposal  of  the  president.  As  the  service  is  grossly 
underpaid  —  the  ambassadors  generally  being  compelled  to  draw 
heavily  upon  their  private  means  —  the  charge  has  been  made 
that  such  appointments  are  put  at  the  disposal  of  the  wealthy 
supporters  of  the  party.  Certain  appointments  would  seem  to 
give  color  to  this  charge.  Nevertheless,  presidents  have  attempted 
to  give,  if  not  a  diplomatic  tone,  at  least  a  somewhat  cultured 
atmosphere  to  some  parts  of  the  service,  and  numerous  men  of 
the  highest  literary  ability  have  occupied  at  one  time  or  another 
important  posts.  Bancroft,  Motley,  Lowell,  Irving,  and  Hay 
would  equal  if  not  surpass  in  literary  ability  the  appointments 
of  any  other  nation.  The  less  important  posts,  however,  are 
not  so  carefully  filled.  Here  political  influence  has  at  times 
been  almost  unchecked,  and  e  appointments  have  been  made 
which  have  reflected  little  credit  upon  the  country. 

The  great  reason  for  the  low  estimation  in  which  the  service 
is  held  abroad  is  the  lack  of  training  of  the  diplomats.  Diplo- 
macy has  developed  rules  and  an  etiquette  of  which  our  repre- 
sentatives are  sometimes  lamentably  ignorant.  This  is  partly  due 
to  their  lack  of  experience  resulting  from  the  constant  changes 
in  the  service.  The  higher  appointments  are  changed  with 
every  change  of  party,  generally  with  every  administration,  and 
sometimes  oftener.  One  exception,  however,  should  be  noticed 
in  the  case  of  George  P.  Marsh,  who  represented  the  United 
States  at  Rome  from  1861  to  1882.  During  the  administrations 
of  Presidents  Roosevelt  and  Taft  some  attempt  was  made  to 
give  a  more  permanent  character  to  the  service.  By  executive 
orders  issued  in  1905  and  1909  vacancies  in  the  office  of  sec- 
retary of  embassy  or  legation  could  be  filled  only  by  promotion 
or  examination,  and  it  was  provided  that  the  civil-service  rules 
and  the  principles  of  the  act  of  1883  should  be  applied  as  far 
as  possible  to  the  foreign  service.  The  intent  was  that  entrance 
should  be  by  examination,  and  that  future  appointments  were  to 
be  in  the  nature  of  transfers  and  promotions,  so  that  beginning 
as  a  secretary  a  young  man  might  hope  to  become  a  minister  or 
even  an  ambassador.  President  Taft  carried  out  the  principles 


FOREIGN  AFFAIRS  543 

• 

of  this  order  to  some  extent,  and  a  few  minor  posts  of  the  first 
rank  were  filled  as  the  result  of  promotion.  Under  President 
Wilson  and  his  Secretaries  of  State  the  principle  has  evidently 
been  temporarily  abandoned.  Three  consecutive  Republican 
administrations  had  filled  the  service  with  Republican  appointees, 
whose  promotion  was  not  acceptable  to  the  Democrats. 

The  duties  of  a  member  of  the  diplomatic  corps  may  be  con-  Duties  of 
sidered  under  two  heads  :  those  to  the  United  States  and  those  mat 
to  the  country  to  which  he  is  accredited.  The  first  and  most 
obvious  duty  of  an  envoy  is  to  keep  his  home  government  in- 
formed concerning  the  special  business  intrusted  to  him,  or  any 
other  matters  which  may  arise  in  the  regular  course  of  affairs. 
This  portion  of  his  task  might  possibly  be  performed  in  a  per- 
functory manner,  or  even  delegated  to  a  subordinate,  with  perhaps 
little  loss  in  efficiency  to  the  service.  A  far  more  important  Gain 
function  is  that  of  keeping  the  government  informed  concerning 
the  spirit,  temper,  and  public  and  private  opinion  of  the  foreign 
country  towards  his  own.  Here  is  offered  the  greatest  scope  for 
skill  and  ability.  The  envoy  must  possess  such  a  character  and 
personality  that  he  will  be  welcomed  in  circles  influential  in 
forming  and  directing  public  opinion.  He  must  be  able  to  dis- 
tinguish temporary  manifestations  of  approval  or  disapproval 
from  the  more  permanent  sentiments  held  by  the  leaders  of  the 
country,  to  gain  but  never  betray  confidences  intrusted  to  him, 
and  yet  to  portray  to  his  home  government  an  accurate  picture 
of  the  underlying  conditions.  Thus  Charles  Francis  Adams, 
minister  to  Great  Britain  during  the  Civil  War,  was  able  not 
merely  to  conduct  the  most  difficult  negotiations  intrusted  to 
him  and  report  the  same  to  the  government  but  also,  from 
his  wide  acquaintance  with  prominent  English  leaders,  to  keep 
the  United  States  informed  of  the  true  condition  of  the  public 
mind  and  often  to  give  unofficial  hints  as  to  the  possibili- 
ties of  a  certain  line  of  action.  In  less  troublous  times 
John  Hay  occupied  a  similar  post  at  the  Court  of  St.  James 
and  performed  similar  functions. 

Aside  from  these  general,  important,  although  indefinite, 
duties  which  require  the  greatest  skill  and  discretion,  every 
ambassador  has  a  multitude  of  routine  duties  which  he  must 


Routine 
duties  of  a 
diplomatic 
agent 


Protection  of 

American 

citizens 


Duties  of  a 
diplomatic 
agent  to  the 
country  to 
which  he  is 
accredited 


544    THE  GOVERNMENT  OF  THE  UNITED  STATES 

perform.  He  must  be  prepared  to  offer  the  proper  amount  of 
protection  to  American  citizens  in  trouble  or  danger.  Two  diffi- 
cult .questions  here  arise  :  Is  a  person  claiming  American  citizen- 
ship actually  a  bona  fide  citizen,  and  to  what  extent  is  it  wise 
to  utilize  force  in  protecting  him  ?  The  first  question  arises 
from  the  naturalization  laws  of  the  United  States  and  the  prac- 
tice of  foreign  countries.  An  alien  takes  out  his  first  papers  or 
even  becomes  a  fully  naturalized  American  citizen  and  returns 
to  his  native  land.  There  he  may  be  arrested  and  appeal  to 
the  American  minister,  upon  whom  devolves  the  decision  of 
whether  he  is  a  bona  fide  citizen  or  not.  If  it  is  decided  that 
he  is  a  citizen,  the  minister  must  then  decide  what  measures 
should  be  taken  to  protect  him.  These  may  go  all  the  way  from 
protest  and  a  demand  for  his  release  to  a  threat  of  force.  The 
protection  of  American  citizens  becomes  a  very  complicated  and 
important  task  when  the  country  to  which  the  minister  is 
accredited  is  involved  in  war.  Thus,  at  the  outbreak  of  the 
World  War  in  1914  thousands  of  American  citizens  found 
themselves  caught  in  Germany,  without  sufficient  resources 
and  in  many  cases  under  suspicion  of  being  English  subjects. 
It  devolved  upon  the  ambassador  to  relieve  their  most  pressing 
necessities,  to  protect  them,  and  to  provide  some  means  for 
their  repatriation. 

Finally  comes  the  large  number  of  demands  which  are  made 
upon  ambassadors  and  ministers  by  sightseers  and  travelers. 
At  times  it  would  appear  as  if  the  embassy  were  little  more  than 
a  tourist  office.  Presentations  at  court  are  obtained  through  the 
agency  of  the  minister,  and  not  infrequently  many  troublesome 
questions  arise  and  much  heartburning  is  created  in  the  attempt 
to  satisfy  all  the  demands.1 

The  duties  of  the  minister  to  the  government  to  which  he  is 
accredited  are  also  many  and  important.  The  first,  perhaps,  lies 
in  giving  a  true  representation  of  the  opinion  and  policy  of 
his  own  country.  In  this  he  is  guided  by  the  dispatches  and 
notes  from  the  Secretary  of  State  which  outline  the  course  he 
is  to  follow  in  his  official  capacity.  In  presenting  these  notes, 
however,  ambassadors  act  in  more  than  a  mere  ministerial 

1  See  James  Russell  Lowell,  Letters  (ed.  C.  E.  Norton),  Vol.  II,  p.  99. 


FOREIGN  AFFAIRS  545 

capacity.  They  may,  as  their  judgment  or  good  sense  directs, 
soften  or  strengthen  the  force  of  the  diplomatic  language 
employed.  They  may,  by  means  of  "conversations,"  co/ivey 
unofficially  a  message  which  prudence  or  fear  of  publicity  would 
prevent  being  committed  to  paper.  It  is  their  duty  at  times  by 
these  means  to  inform  the  foreign  government  of  the  effect  its 
action  would  have  upon  the  United  States.  Perhaps  the  most 
often  quoted  example  of  such  a  warning  is  found  in  the  note 
addressed  by  Charles  Francis  Adams  to  Earl. Russell  concern- 
ing the  Laird  rams,  where  he  used  the  phrase,  "It  would  be 
superfluous  in  me  to  point  out  to  your  lordship  that  this  is  war." 
When  the  country  to  which  he  is  accredited  is  engaged  in  war, 
the  American  minister  may  be  asked  to  take  over  the  duties  of 
some  of  the  belligerent  countries,  and  he  may  become  the 
medium  of  communication  between  the  two  belligerents.  Thus, 
until  the  United  States  entered  the  war,  the  American  ambassa- 
dor at  Berlin  had  charge  of  the  archives  and  carried  on  what 
was  left  of  the  duties  of  the  British  and  French  missions  there. 

One  other  set  of  duties  which  may  be  characterized  as  irregular  special 
or  extraordinary  includes  those  of  special  negotiations  and  service  negot 
upon  special    missions.  *  These  are    commonly  connected  with 
peace  negotiations  but  may  equally  arise  from  any  international 
crisis  or  for  the  establishment  of  some  international  agreement. 
Frequently  a  special  mission  unconnected  with  the  regular  minister 
is  intrusted  with  this  service,  but  sometimes  the  regular  diplomatic 
agents  are  employed. 

Another  type  of  diplomatic  agent  which  is  occasionally  utilized  Executive 
is  the  executive  agent.  When  it  seems  unwise  to  'recognize  the  agen1 
government  established  by  a  revolutionary  movement  and  yet  it 
becomes  necessary  to  obtain  information  and  possibly  to  conduct 
negotiations  with  such  a  government,-  a  special  unofficial  agent 
may  be  dispatched  by  the  president.  This  agent  is  not  an  officer 
of  the  United  States  appointed  by  law  —  in  fact,  his  functions  are 
entirely  extra-legal.  He  cannot  be  paid  out  of  any  fund  other  than 
the  discretionary  fund  placed  by  Congress  at  the  disposal  of  the 
president.  During  the  Civil  War  there  were  several  of  these 
unofficial  missions  and  agents  dispatched  to  England,  who 
sometimes  greatly  hampered  or  annoyed  the  regular  minister. 


The  consular 
service 


Criticism  of 
the  consular 
service 


Improve- 
ments in  the 
consular 
service 


546    THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  most  recent  examples  of  the  employment  of  these  executive 
agents  have  occurred  in  the  Wilson  administrations.  In  1913, 
although  refusing  to  recognize  the  government  established  by 
General  Huerta,  the  president  dispatched  John  Lind  as  his 
special  envoy.  During  the  World  War,  both  before  and  after 
the  United  States  became  a  belligerent,  the  president  sent 
his  personal  friend,  Colonel  House,  to  Europe  to  obtain  for  him 
first-hand  impressions  and  information. 

Another  bureau  of  the  department  is  charged  with  the  con- 
sular service.  This  was  first  organized  in  1792  but  reorganized 
and  systematized  in  1856  and  1906.  The  service  as  organized 
before  1914  consisted  of  five  consuls-general  at  large,  who  are 
advisory  and  inspecting  officers ;  fifty-seven  consuls-general, 
who  are  charged  with  duties  of  consuls  but  have  supervisory 
powers  over  the  consulates  and  consular  agencies  within  their 
districts ;  two  hundred  and  forty-one  consuls,  divided  into  nine 
classes  according  to  salary ;  three  hundred  and  fifty-seven  vice- 
consuls  ;  two  hundred  and  thirty-seven  consular  agents,  and 
other  minor  officials.1 

Many  of  the  criticisms  of  the  diplomatic  service  would  apply 
even  more  strongly  to  the  consular  service.  Because  less  in  the 
public  eye  it  has  been  used  even  more  often  for  political  rewards, 
and  the  character  of  some  of  the  appointments  has  been  scan- 
dalous. Beginning  in  1895,  however,  a  series  of  reforms  was 
initiated  in  the  attempt  to  raise  the  character  of  the  service  and 
to  secure  permanence  and  promotion.  Entrance  is  gained  by 
examination  to  the  lowest  grade  and  promotion  by  transfer  is 
based  upon  grounds  of  efficiency  evidenced  by  records  kept  in 
the  bureau.  This  system  was  attacked  even  during  the  Republican 
administration  in  which  it  was  established,  but  during  the  first 
months  of  the  Democratic  administration  in  1913  the  attacks 
were  redoubled.  The  charges  were  that  it  was  impracticable, 
and  that,  owing  to  the  fact  that  the  system  of  apportionment  to 
states  according  to  population  was  not  followed,  the  South  was 
deprived  of  its  just  representation.  Nevertheless,  Secretary  Bryan 
resisted  the  attack  and  issued  a  statement  that  he  was  "  entirely  in 

1  Cyclopedia  of  American  Government,  Vol.  I,  p.  449.  These  figures  are 
typical  of  the  organization  before  the  World  War. 


FOREIGN  AFFAIRS 


547 


sympathy  with  the  purpose  of  the  executive  order  governing  ap- 
pointments and  promotion  in  the  consular  service." 1  The  records 
prove  his  sincere  desire  to  continue  the  improved  system. 

The  duties  of  consuls  are  varied  and  important  and  demand  Duties  of 
a  wide  range  of  ability  and  experience.  Primarily  they  are  com-  consuls 
mercial  agents  of  the  United  States  whose  reports  are  supposed 
to  give  information  concerning  the  possibilities  of  the  develop- 
ment of  American  trade  and  commerce ;  they  are  also  expected 
to  keep  the  government  informed  concerning  any  legislation 
which  might  be  detrimental  to  the  policy  or  interests  of  the 
United  States.  They  are  charged  with  certain  duties  connected 
with  the  enforcement  of  the  revenue  and  immigration  laws  of 
the  United  States,  and  in  that  capacity  must  sign  invoices  and 
clearances,  and  attest  valuations  of  goods,  and  issue  certificates. 
They  are  supposed  to  see  that  the  navigation  laws  are  complied 
with,  that  vessels  sail  with  clean  bills  of  health  describing  the 
condition  of  the  passengers  and  crew  and  cargoes.  They  investi- 
gate disputes  between  masters  of  vessels  and  their  crews,  and 
send  mutineers  back  to  the  United  States  ;  take  charge  of  wrecked 
American  vessels,  shipwrecked  crews,  and  passengers.  They 
are  also  judicial  officers,  and  act  as  probate  judges  and  adminis- 
trators of  the  estates  of  Americans  leaving  property  within  their 
districts,  witness  wills  and  marriages,  and  in  certain  countries 
have  jurisdiction  over  civil  and  sometimes  criminal  trials  to  which 
Americans  are  parties.2  In  general  they  are  supposed  to  give  all 
necessary  assistance  and  advice  to  American  citizens  resident 
abroad,  and  in  times  of  war  they  may  be  called  upon  to  protect 
both  American  citizens  and  neutrals. 

METHODS  OF  CONDUCTING  FOREIGN  AFFAIRS 

Our  relations  with  other  nations  are  conducted  both  directly  presidential 
and  indirectly.    The  indirect  method  is  by  means  of  the  presi- 
dential   message  to    Congress.    During  the   administrations   of 
President  Wilson  this  has  been  used  very  frequently.    It  has  the 

1  American  Year  Book  (1913). 

2  This  exemption  from  the  jurisdiction  of  local  courts  of  the  country  applies 
to  American  citizens  in  China,  Morocco,  Muscat,  and  Persia.    Until  recently  it 
was  in  vogue  in  Japan  and  Turkey. 


548    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Diplomatic 
communi- 
cations 


Diplomatic 
negotiations 


advantage  of  informing  foreign  nations  of  the  attitude  of  the 
administration  without  the  embarrassments  of  a  diplomatic  com- 
munication. It  is  efficacious  in  proportion  as  it  arouses  the 
enthusiasm  of  the  country  and  shows  foreign  countries  the 
determined  attitude  of  the  nation. 

Diplomatic  communications  are  the  usual  direct  method  of 
conducting  foreign  affairs.  These  negotiations  may  be  in  the 
form  of  dispatches  from  the  ministers  or  in  notes  sent  to  the 
ministers  to  be  delivered  to  the  representatives  of  the  foreign 
state.  Thus,  before  the  United  States  entered  the  war,  most  of 
the  negotiations  with  Germany  were  transacted  through  the 
German  ambassador  in  Washington,  while  the  greater  part  of 
the  communications  to  Great  Britain  were  sent  to  the  American 
ambassador  in  London  to  be  delivered  to  the  British  Foreign 
Office.  Convenience,  ability  of  the  representatives,  and  their 
authority  to  conduct  negotiations  probably  caused  this  distinc- 
tion. Diplomatic  documents  may  be  official  formal  documents 
of  protest  and  claims  containing  arguments  to  justify  or  prove 
the  contention,  or,  on  the  other  hand,  the  Secretary  of  State 
may  in  an  instruction  to  the  ambassador  advise  or  recommend 
a  course  of  action  and  direct  that  he  inform  the  foreign  country 
of  certain  things.  This  may  be  done  either  by  delivering  the 
communication  as  received,  or  the  contents  of  the  note  may  be 
given  to  the  foreign  state  with  such  comments  or  explanations 
as  the  ambassador  thinks  necessary. 

Diplomatic  negotiations  involve  the  exchange  of  diplomatic 
communications  or  conversations.  Each  side  states  its  position 
with  arguments  and  evidence  to  support  its  contention.  Some- 
times the  mere  statement  serves  to  remove  the  difficulties ;  in 
most  instances,  however,  each  side  concedes  some  points,  and  an 
agreement  is  reached.  Diplomatic  negotiations  vary  from  formal 
negotiation  of  a  treaty  to  an  informal  agreement  to  follow  a  cer- 
tain line  of  action  in  a  particular  instance.  It  is  a  mistake  to  assume 
that  diplomatic  negotiations  all  find  their  record  in  treaties ;  by 
far  the  larger  part  of  the  activities  of  diplomats  is  taken  up  with 
the  settlement  of  minor  matters  and  the  removal  of  petty  points 
of  difference.  In  other  words,  diplomatic  negotiations  many  times 
remove  the  necessity  of  proceeding  as  far  as  a  formal  treaty. 


FOREIGN  AFFAIRS  549 

Treaties  may  be  of  all  sorts  and  kinds ;  in  fact  former  Secre-  Treaties 
tary  of  State  Foster  enumerates  twenty-six  different  kinds  of 
the  more  important  treaties.  In  international  law  and  diplomacy 
it  may  be  proper  thus  to  classify  treaties  as  to  their  nature  or 
the  subject  with  which  they  are  concerned,  but  for  the  purpose 
of  discussing  the  operations  of  the  government  of  the  United 
States,  a  treaty  is  an  international  agreement  or  contract  requir- 
ing the  consent  of  the  Senate.  Agreements  not  submitted  to 
the  Senate  are  not  treaties  nor  do  they  have  the  binding  force 
given  to  treaties  by  the  Constitution. 

In  the  United  States  the  treaty-making  power  is  shared  by  Negotiation 
the  president  with  the  Senate,  and  in  some  instances  may  require 
action  by  the  House.  A  treaty  or  convention  is  said  to  be  nego- 
tiated ;  that  is,  its  terms  are  agreed  upon  and  reduced  to  writing. 
The  negotiators  may  be  either  the  Secretary  of  State,  diplomats 
in  foreign  countries,  or  special  negotiators  appointed  by  the 
president.  In  all  cases  the  president  has  the  initiative  in  open- 
ing the  negotiations.  In  very  rare  cases  the  Senate  or  Congress 
has  requested  the  president  to  open  negotiations  with  foreign 
governments  on  specially  indicated  subjects.1  The  president, 
however,  is  by  no  means  obliged  to  accede  to  such  a  request. 

Since  the  Constitution  says  that  the  president  "  shall  have  Relations 
power,  by  and  with  the  advice  and  consent  of  the  Senate,  to  president 
make  treaties  ..."  the  question  arises  whether  the  Senate  is 
associated  with  the  president  in  the  negotiations  or  only  passes 
upon  the  completed  work.  Washington  once  presented  a  project 
of  a  treaty  to  the  Senate  in  person,  but  with  unsatisfactory 
results,  for  "they  debated  it  and  proposed  alterations  so  that 
when  Washington  left  the  Senate  Chamber  he  said  he  would 
be  d — d  if  he  ever  went  there  again.  And  ever  since  that  time 
treaties  have  been  negotiated  by  the  executive  before  submitting 
them  to  the  consideration  of  the  Senate."2  Nevertheless,  other- 
presidents  have  formally  consulted  the  Senate,  although  not  in 
person,  either  before  the  negotiations  or  during  the  process. 
Although  the  formal  consultation  of  the  Senate  is  rare,  informal 
discussion  with  certain  leaders  is  very  common.  Since  all  treaties 

1  J.  W.  Foster,  The  Practice  of  Diplomacy,  p.  275. 

2  J.  Q.  Adams,  Memoirs,  Vol.  VI,  p.  427. 


550    THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  rati- 
fication of 
treaties 


The  Senate 
may  not 
amend  a 
treaty 


when  submitted  to  the  Senate  are  referred  to  the  Committee  on 
Foreign  Affairs,  it  is  of  vital  importance  to  obtain  the  approval 
of  that  committee.  Failure  to  secure  such  approval  may  cause 
the  treaty  to  be  "  pigeonholed  "  in  the  committee's  archives,  a 
fate  which  befell  the  important  reciprocity  treaties  negotiated 
during  the  administration  of  President  McKinley.  Since,  more- 
over, it  may  require  some  legislation  to  carry  the  treaty  into 
effect,  the  chairman  of  the  Committee  on  Foreign  Affairs  in  the 
House  may  be  consulted,  and  sometimes  the  Speaker  and  less 
frequently  the  chairman  of  the  Committee  on  Appropriations. 
These  consultations,  however,  are  purely  informal  affairs  and 
are  in  no  sense  a  recognition  of  the  right  of  anyone,  save  the 
president,  to  determine  what  treaties  shall  be  negotiated  or  how 
the  negotiations  shall  be  conducted. 

The  ratification  of  a  treaty  already  negotiated  is  a  different 
affair  and  here  the  Senate  stands  upon  its  undisputed  constitu- 
tional right.  The  process  involves  the  submission  of  the  treaty 
to  the  Senate  and  its  reference  to  the  Committee  on  Foreign 
Affairs.  Here  a  delay  may  occur.  If  the  chairman  of  the  com- 
mittee is  opposed  to  the  treaty  or  to  the  president,  he  may 
refuse  to  call  a  meeting  to  consider  it ;  or  if  the  majority  of  the 
committee  are  opposed  to  the  treaty,  they  may  delay  action  upon 
it  or  report,  advising  its  rejection  or  its  adoption  with  amend- 
ments. Technically,  the  Senate  cannot  amend  a  treaty.  The 
acceptance  of  a  treaty  with  amendments  is  equivalent  to  the 
rejection  of  the  one  already  signed  with  the  suggestion  that  new 
negotiations  be  commenced  along  the  lines  suggested  by  the 
amendments.  In  most  instances  the  president  and  the  foreign 
state  have  accepted  the  amendments.  The  Senate,  however,  has 
ratified  without  change  by  far  a  larger  number  of  treaties  than  it 
has  rejected  or  accepted  with  amendments.1  Treaties  are  con- 
sidered in  executive  session  and  debated  in  secret,  but  in  1888 
the  Fisheries  Treaty  with  Great  Britain  and  in  1919  the  treaty 
to  end  the  World  War  were  considered  in  open  session. 

One  rather  interesting  point  should  be  noticed  in  regard  to 
the  ratification  of  treaties,  that  is,  the  power  of  the  Senate  to 
ratify  a  treaty  requiring  the  expenditure  of  money,  which  must 

1  J.  W.  Foster,  The  Practice  of  Diplomacy,  p.  276. 


FOREIGN  AFFAIRS  551 

be  appropriated  by  the  House.    The  question  has  been  a  vital  The  House 
one  at  least  twice  in  our  history ;  and  in  both  cases  the  House,   ™teappr°" 
after  more  or  less  discussion  and  bluster,  has  made  the  appro-  money 
priations.    This  is  correct  from  the  point  of  view  of  both  con-  a  treaty 
stitutional  and  international  law.    Constitutionally,  treaties  duly 
signed  and  ratified  are  the  supreme  law  of  the  land,  and  the 
House  is  morally  bound  to  carry  out  their  provisions.     Inter- 
national law  regards  a  ratified  treaty  as  binding,  and  a  failure  to 
carry  out  its  provisions  constitutes  a  breach  of  its  terms  and 
gives  grounds  for  claims  and  damages.    This  is  exactly  the  point 
of  view  Jackson  took  when  the  French  Chamber  refused  to  make 
the  appropriations  called  for  by  a  treaty  with  the  United  States. 
He  went  even  further  and  took  retaliatory  measures. 

The  constitutional  requirement  that  two  thirds  of  the  Senate  secret 
must  concur  in  the  ratification  of  a  treaty  insures  the  support  of  fmpossiSe 
the  majority  of  the  people  of  the  country  and  effectually  prevents 
secret  diplomacy,  that  is,  the  binding  of  the  government  by  agree- 
ments unknown  to  the  legislature  or  to  the  people.    Thus,  in 
spite  of  the  consideration  of  treaties  in  secret  session  and  the 
power  of  the  president  in  negotiation,  diplomacy  and  the  conduct 
of  foreign  affairs  in  the  United  States  are  much  more  under 
popular  control  than  they  are  in  England  or  in  most  countries 
of  Europe.1 

One  kind  of  convention  seems  to  prove  the  exception  to  the  Executive 
foregoing  statement.  This  is  the  executive  agreement.2  These 
agreements  vary  from  the  settlement  of  claims  as  the  result  of 
diplomatic  negotiations  to  agreements  for  arbitration,3  to  a  proto- 
col for  a  treaty,  and  even  agreements  establishing  conditions 
ordinarily  determined  by  most  formal  treaties. 

These  executive  agreements  are  made  through  the  power  of 
the  president  to  appoint  and  control  diplomatic  agents,  backed 

1  In  1919,  as  has  been  said,  the  Senate  considered  the  treaty  to  terminate 
the  World  War  in  open  session. 

2  See  J.  B.  Moore,  in  Political  Science  Quarterly  (September,  1905),  Vol.  XX, 
p.  385;  A  Digest  of  International  Law,  Vol.  V,  p.  211  ;  J.  W.  Foster,  in  Yale 
Law  Journal,  Vol.  XI,  p.  77. 

3  J.  W.  Foster,  in  "  The  Practice  of  Diplomacy,"  holds  that  no  such  arrange- 
ments have  been  made  without  the  assent  of  the  Senate,  but  Moore's  "  Digest," 
Vol.  V,  p.  211,  notes  fifteen  such  agreements. 


Executive 

agreements 

do  not 

require 

assent  of 

either 

House 


Executive 
agreements 
frequently 
used 


552    THE  GOVERNMENT  OF  THE  UNITED  STATES 

by  his  power  as  a  general  executive.  He  may  thus,  through  his 
Secretary  of  State,  direct  an  agent  to  agree  to  a  certain  course 
of  action,  and  through  his  power  as  general  executive,  supported 
by  his  power  as  a  commander  in  chief,  carry  out  the  agreement  he 
has  made.  Unless  an  appropriation  is  required  from  Congress, 
or  some  legislative  act  made  necessary  by  the  new  conditions 
created,  or  a  case  at  law  carried  to  the  courts,  his  actions  cannot 
be  questioned. 

This  method  is  frequently  used  for  the  settlement  of  minor 
points  of  dispute,  particularly  of  claims.  In  1899,  however, 
General  Bates  negotiated  an  agreement  with  the  Sultan  of  Sulu, 
by  which  among  other  things  the  sovereignty  of  the  United  States 
was  recognized  over  the  entire  archipelago,  protection  was  guar- 
anteed, and  the  United  States  promised  not  to  sell  any  island  of 
the  archipelago  without  the  consent  of  the  Sultan.  These  under- 
takings were  confirmed  by  President  McKinley  and  submitted 
to  Congress  for  information,  but  the  agreement  was  not  submitted 
to  the  Senate  nor  was  affirmative  action  taken  by  Congress  upon 
it.1  The  most  important  international  agreement  entered  into  by 
the  executive  without  the  advice  and  consent  of  the  Senate  was 
the  protocol  of  the  treaty  with  Spain  in  1898.  This,  on  its  face, 
was  a  mere  protocol  of  a  treaty,  but  its  terms,  in  a  measure, 
seemed  to  anticipate  the  definite  peace.  The  executive  agree- 
ment which  has  perhaps  aroused  the  greatest  antagonism  was 
the  one  made  by  President  Roosevelt  in  1905  regarding  Santo 
Domingo.  A  definite  treaty  had  been  negotiated  and  submitted 
to  the  Senate,  by  which  the  United  States  took  charge  of  the 
customhouse,  collected  the  revenues,  and  deposited  them  in 
banks  in  New  York  for  the  benefit  of  the  creditors.  The  Senate, 
however,  adjourned  without  ratifying  the  treaty.  Whereupon, 
President  Roosevelt  proceeded  to  accomplish  by  executive  agree- 
ment what  he  had  attempted  to  do  by  means  of  a  treaty.  This 
agreement  was  continued  until  1907,  when  another  treaty  similar 
to  the  first  was  ratified.  During  the  early  years  of  the  World 
War  the  president  entered  into  numerous  agreements  with  the 
Allies,  few  of  which  were  submitted  to  the  Senate.  Some 
of  the  few  which  are  known  deal  with  such  important  matters 

1  J.  B.  Moore,  A  Digest  of  International  Law,  Vol.  V,  p.  213. 


FOREIGN  AFFAIRS  553 

as  loans,  exchange  of  munitions  and  supplies,  and  the  placing 
of  the  American  forces  at  the  disposal  of  the  English  and 
French  commanders. 

Foreign  affairs  may  be  dealt  with  and  international  disputes  Arbitration 
may  be  settled  by  arbitration.  By  this  method  the  two  powers 
either  choose  arbitrators  themselves,  or  leave  the  question  to  an 
umpire,  or  refer  the  dispute  to  an  already  organized  court,  such 
as  The  Hague.  Usually  the  decision  as  to  whether  the  case  is 
to  be  submitted  to  arbitration  is  determined  by  a  treaty  in  which 
the  method  of  procedure  is  prescribed  and  the  question  carefully 
defined.  In  such  a  case  the  assent  of  the  Senate  is  necessary. 
It  has  just  been  pointed  out,  however,  that  on  several  occasions 
questions  have  been  submitted  to  arbitration  by  executive  agree- 
ment alone.  Agreements  to  arbitrate  may  be  special  or  general. 
In  a  special  convention,  a  definite  question,  usually  carefully 
defined,  is  submitted  to  an  arbitral  board  whose  composition  is 
determined  by  treaty.  This  practice  has  been  followed  since  the 
establishment  of  the  government,  the  first  instance  being  in  the 
Jay  Treaty  of  1/94,  by  which  three  commissions  were  provided 
for  to  settle  certain  disputes  with  Great  Britain.  The  most 
important  instance,  however,  was  the  Geneva  Arbitration,  which 
settled  the  question  of  the  damages  resulting  from  the  depreda- 
tions of  the  Alabama  and  the  other  Confederate  cruisers.  More 
recent  questions  are  those  which  have  involved  Canada  and  the 
United  States,  particularly  the  question  of  the  fisheries,  Alaskan 
boundary,  and  the  fur  seals.  The  United  States  has  been  a  party 
to  nearly  a  hundred  such  arbitrations.  Since  the  first  administra- 
tion of  President  Wilson  thirty  treaties  have  been  ratified,  pro- 
viding that  before  resorting  to  war  the  powers  will  submit  any  ' 
and  all  disputes  to  a  commission  of  inquiry.1 

TYPES  OF  DIPLOMATIC  QUESTIONS  AND  QUESTIONS  OF 
FOREIGN  POLICY 

Without  attempting  to  write  the  history  of  the  diplomacy  of 
the  United  States  or  to  discuss  in  detail  its  foreign  policy,  it  is 
well  to  gain  some  conception  of  the  kinds  of  problems  which  the 

1  Seep.  571. 


Boundaries 


554    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Department  of  State  faces  and  the  methods  used  in  their  solu- 
tion. The  first  and  most  numerous  class  would  perhaps  deal  with 
individuals.  Citizens  of  the  United  States  may  suffer  wrong  in 
their  person  or  property  at  the  hands  of  another  state,  or  of  the 
citizens  of  another  state,  and  call  upon  the  United  States  to 
protect  them.  In  cases  of  this  sort  the  usual  course  is  for  the 
Department  of  State  to  open  diplomatic  negotiations  through 
the  American  ambassador.  The  facts  are  stated,  and  the  demand 
is  made.  The  foreign  country  may  accede  at  once,  or  deny  the 
claims,  or  urge  justification  for  its  action.  In  the  first  instance 
the  question  is  usually  settled  by  an  executive  agreement  more 
or  less  formal ;  in  the  other  cases  the  questions  may  be  referred 
to  arbitration  or  may  involve  a  principle  which  necessitates  settle- 
ment by  a  treaty.  Thus  the  question  of  the  status  of  naturalized 
American  citizens  who  have  returned  to  their  native  land  began 
with  individual  instances  which  were  subject  to  diplomatic  nego- 
tiations, until  finally  certain  principles  were  worked  out  which 
were  embodied  in  treaties.  A  good  example  of  this  process  is 
found  in  the  settlement  of  the  status  of  the  naturalized  Germans 
who  returned  to  their  native  country  and  were  arrested  for  fail- 
ure to  complete  their  term  of  military  service.  After  numerous 
instances  and  the  attempted  settlement  of  special  cases,  a  series 
of  treaties  was  finally  negotiated  by  George  Bancroft,  in  which  the 
American  principles  of  naturalization  were  admitted,  but  in  which 
it  was  provided  that  if  the  naturalized  emigrant  returned  to  his 
native  land  he  should  be  liable  for  all  offenses  committed  before 
his  emigration.  Treaties  of  similar  tenor  have  been  negotiated 
with  the  majority  of  the  European  states  requiring  universal 
military  service. 

Questions  of  boundaries  have  been  frequent  subjects  of  diplo- 
matic negotiation.  Some  of  these  have  been  settled  by  negotia- 
tions or  treaties,  but  from  1 794  the  United  States  has  followed, 
with  more  or  less  consistency,  the  principle  of  referring  these  to 
arbitration.  One  of  the  most  recent  cases  to  be  thus  settled  was 
the  Alaskan  boundary  dispute  with  Canada. 

In  dealing  with  foreign  nations  frequent  questions  have  arisen 
as  to  the  treatment  of  revolutionary  changes  of  government  or 
even  the  separation  of  a  portion  of  the  state.  These  questions 


FOREIGN  AFFAIRS  555 

may  be  grouped  around  the  policy  of  the  United  States  regard- 
ing the  recognition  of  insurgency,  belligerency,  independence, 
and  the  enforcement  of  neutrality. 

"  Insurgents  are  organized  bodies  of  men  who,  for  public  pur-  Recog- 
poses,  are  in  a  state  of  armed  hostility  to  an  established  govern-  ?nsirge°ncy 
ment."  1  The  question  which  has  confronted  the  United  States 
many  times  is,  Is  a  revolt  against  an  established  government  actu- 
ally and  legally  war  ?  In  other  words,  Do  the  laws  of  war  apply  in 
such  a  case  and  are  both  the  parent  state  and  the  United  States 
relieved  from  the  ordinary  obligations  of  the  laws  of  peace  ?  or, 
to  put  it  more  concretely,  Are  the  revolutionists  who  are  found 
upon  the  sea,  insurgents  or  pirates  ?  The  Supreme  Court,  in 
interpreting  the  position  taken  by  the  executive,  has  said  that 
there  may  be  war  in  the  "  material  sense "  which,  because 
belligerency  has  not  been  recognized,  has  not  become  war  in  the 
"  legal  sense."  In  other  words,  although  the  United  States  is 
compelled  to  admit  that  an  armed  conflict  actually  exists,  it  does 
not  take  the  same  position  as  it  does  when  a  state  is  belligerent 
or  a  legal  state  of  war  is  recognized.  This  is  well  illustrated  in 
the  course  pursued  by  the  United  States  in  dealing  with  the  in- 
surgents both  in  Brazil  and  in  Cuba.  In  neither  case  did  the 
United  States  concede  to  the  insurgents  the  right  of  belligerents, 
that  is,  the  right  to  make  captures  on  the  high  sea  and  to  seize 
contraband.  The  cruisers  of  the  insurgents  were  not  regarded  as 
pirates  but  as  lawful  combatants,  still  the  United  States  did  not 
take  the  position  of  a  neutral,  for  it  did  not  allow  these  cruisers 
the  hospitality  of  its  ports  nor  did  it  allow  its  citizens  to  give  the 
insurgents  assistance. 

A  Status  of  Belligerency  [arises]  when  the  insurrection  has  assumed  Recog- 
the  proportions  of  a  public  civil  war  in  the  legal  sense,  that  is,  when 
the  war  is  waged  by  insurgents  politically  organized  under  a  responsible 
government  exercising  sovereign  powers  over  a  definite  territory  and 
having  the  will  and  capacity  to  fulfill  its  neutral  obligations.2 

In  recognizing  such  a  condition  the  United  States  issues  a 
proclamation  of  neutrality,  warning  its  citizens  to  refrain  from 

1  Wilson  and  Tucker,  International  Law,  p.  63. 

2  A.  S.  Hershey,  Essentials  of  International  Public  Law,  pp.  121,  122. 


556    THE  GOVERNMENT  OF  THE  UNITED  STATES 

performing  certain  acts,  aiding  either  side  as  a  government,  or 
showing  partiality  to  either.  For  the  purpose  of  conducting  hos- 
tilities the  United  States  recognizes  that  the  insurgents  have 
certain  rights  and  privileges  which  are  usually  accorded  only  to 
independent  sovereign  states.  It  recognizes  a  legal  state  of  war 
and  thus  allows  the  cruisers  and  vessels  of  war  of  the  revolting 
community  the  same  privileges  in  its  ports  as  it  does  the  naval 
forces  of  the  parent  state.  It  submits  to  search  and  capture  of 
contraband  by  both  belligerents  and  thus  without  doubt  makes 
it ,  more  difficult  for  the  parent  state  to  suppress  the  revolt. 
Although  it  may  make  this  recognition  for  its  own  protection, 
its  action  may  be  considered  an  unfriendly  act  by  the  parent 
state.  Thus,  during  the  Civil  War,  even  after  the  North  had 
recognized  that  a  legal  war  actually  existed,  by  issuing  a  proclama- 
tion of  blockade,  it  was  held  that  England  had  showed  an 
unfriendly  spirit  in  recognizing  the  belligerency  of  the  Confed- 
eracy. In  the  course  of  the  two  long  Cuban  insurrections  great 
pressure  was  brought  to  bear  upon  the  executive  to  recognize 
the  belligerency  of  the  insurgents.  This  was  not  done,  chiefly 
on  the  ground  that  no  responsible  government  had  been  estab- 
lished. Had  the  United  States  recognized  the  belligerency,  it. 
would  have  been  in  a  very  different  position  at  the  close  of  the' 
war  from  what  it  occupied  after  the  Spanish-American  War, 
when  Cuba  was  raised  to  a  semi-independent  state  under  the 
protection  of  the  United  States. 

Intervention  has  been  defined  as  follows  : 

Intervention  takes  place  when  a  state  interferes  in  the  relations  of 
two  other  states  without  the  consent  of  tfoth  or  either  of  them,  when 
it  interferes  in  the  domestic  affairs  of  another  state  irrespective  of  the 
will  of  the  latter  for  the  purpose  of  either  maintaining  or  altering  the 
actual  condition  of  things  within  it.1 

Intervention  may  be  peaceful  or  warlike,  may  be  exercised  as 
a  right  based  upon  a  treaty,  or  may  be  without  right  because  of 
a  question  of  policy.  Intervention  is  a  most  serious  step  to  take 

1  W.  E.  Hall,  International  Law  (7th  ed.),  p.  293.  A  briefer  definition  is  given 
by  L.  Oppenheim,  International  Law,  Vol.  I,  p.  188,  "  Intervention  is  dictatorial 
interference  by  a  state  in  the  affairs  of  another  state  for  the  purpose  of  main- 
taining or  altering  the  actual  condition  of  things." 


FOREIGN  AFFAIRS  557 

j  because  the  consequences  are  likely  to  lead  to  war.   The  United  mterven- 
i  States  has  at  least  two  treaties  giving  her  the  right  to  intervene  on°treatSyd 
!  in  the  affairs  of   other  states.    These   are  the  treaty  of   New  rights 
Granada   of  1846,    revised   and   rewritten   as   the   treaty  with 
I  Panama  (1903),  which  gives  the  United  States  the  right  to  inter- 
!  vene  in  that  state  when  the  transit  across  the  Isthmus  is  threat- 
ened ;  and  the  treaty  of  Havana,  1903,  which  gives  the  United 
States  the  right  to  intervene  for  the  preservation  of  the  inde- 
pendence of  Cuba  and  the  maintenance  of  a  government  adequate 
for  the  protection  of  life,  property,  and  individual  liberty.    Under 
the  old  treaty  of  1846  with  New  Granada  the  United  States 
intervened  several  times  in  the  affairs  of  the  Isthmus,  once  to 
establish  the  independence  of  Panama  and  again  in  1904  to 
quiet  disorders  in  the  newly  established  state.    So  also  the  United 
States  has  intervened  in  Cuban  affairs  to  preserve  order  and  to 
aid  in  establishing  a  stable  government. 

Intervention  without  treaty  rights  may  be  justified  on  various  interven- 
grounds.    It  is  never  a  legal  obligation  but  always  a  question  of  ouTtreaty 
policy.    Such   intervention    has  been   practiced  by  the  United  rights 
States  many  times,  especially  in  dealing  with  the  republics  of 
Central  America.    Perhaps,  however,  the  most  noteworthy  occa- 
sion was  the  intervention  of  the  United  States  in  Cuban  affairs 
when,  instead  of  recognizing  the  independence  of  Cuba  or  even 
the  belligerency  of  the  insurgents,  the  president  demanded  cer- 
tain changes  in  Spanish    policy   which   he   was  authorized  to 
enforce  by  arms.    Rather  than  comply,  Spain  declared  war  upon 
the  United   States,   and  upon  the  establishment  of  peace  the 
United  States  obtained  a  protectorate  over  Cuba.    More  recently 
President  Wilson  has  intervened  in  the  affairs  of  Mexico,  and, 
although  he  expressly  disclaimed  any  intention  of  waging  war, 
armed  conflicts  took  place. 

The  recognition  of  the  independence  of  a  revolting  community  Recognition 
is  another  act  which  may  involve  the  country  in  complications  pendence 
with  foreign  powers.    The  parent  state  is  most  loath  to  admit 
that  a  revolted  community  has  achieved   independence  and  is 
inclined  to  regard  such  recognition  by  another  state  as  a  hostile 
act.    Thus  England  declared  war  upon  France  because  of  the 
latter's  recognition  of  the  United  States,  signified  by  a  treaty  of 


558    THE  GOVERNMENT  OF  THE  UNITED  STATES 

alliance  in  1777.  In  its  early  history  the  United  States  set  good 
precedents  in  exercising  this  right.  Thus,  in  spite  of  the  urgent 
demands  of  Congress,  voiced  by  such  men  as  Henry  Clay, 
President  Monroe  refused  to  recognize  the  independence  of  the 
revolting  Spanish-American  colonies  until  it  was  evident  that 
Spain  could  never  hope  to  recover  them.  So,  also,  the  inde- 
pendence of  Texas  was  not  recognized  until  a  year  after  Mexico 
had  ceased  all  attempts  to  reconquer  it.  In  the  case  of  the 
recognition  of  the  independence  of  the  Republic  of  Panama  no 
such  deliberation  was  exhibited.  The  revolt  occurred  at  six  P.M. 
on  November  3,  1903  ;  the  next  day  United  States  marines 
were  landed,  and  on  November  6  Secretary  Hay  instructed  the 
American  consul  to  recognize  the  de  facto  government,  and  a 
week  later  President  Roosevelt  received  a  minister  from  the 
independent  state  of  Panama.1  Such  haste  showed  that  the 
whole  episode  should  be  classified  as  intervention  rather  than 
the  recognition  of  an  independent  state  possessing  a  definite 
territory,  a  responsible  government,  and  showing  evidence  of 
permanence.  As  an  example  of  intervention  it  might  possibly 
be  justified,  but  as  a  recognition  of  an  independent  state  it 
violated  all  rules  of  international  law  and  precedent.  As  such 
it  was  regarded  as  an  unfriendly  act  by  Colombia,  the  effects 
of  which  the  Wilson  administration  has  attempted  to  remove. 
Lack  of  It  should  be  noticed  that  in  all  the  foregoing  questions  it  is 

s?ona?8~  the  president  and  Secretary  of  State  who  act.  Congress  is 
practically  powerless.  It  may  be  called  upon  to  pass  legislation 
to  carry  out  a  policy  or  to  approve  an  already  accomplished  act ; 
but  the  initiative  and  execution  are  in  the  hands  of  the  president. 
Congress  clamored  for  the  recognition  of  the  independence  of  the 
South  American  Republics  and  the  belligerency  of  Cuba,  even 
passing  resolutions  advising  the  same.  President  Wilson  inter- 
vened in  Mexico  with  the  army  two  days  before  Congress  passed 
the  resolution  of  approval,  and  the  whole  Panama  affair  was  con- 
summated during  a  recess  of  Congress.  When  the  action  requires 
a  treaty  or  an  appropriation  Congress  or  the  Senate  must  be  con- 
sulted ;  where  such  is  not  needed  Congress  can  hope  to  do 
little  more  than  to  acquiesce  in  an  accomplished  fact. 

1  J.  H.  Latane,  America  as  a  World  Power,  pp.  215-216. 


FOREIGN  AFFAIRS  559 

QUESTIONS  OF  NEUTRALITY 

Neutrality  may  be  defined  as  "the  condition  of  those  states  Neutrality 
which  in  time  of  war  take  no  part  in  the  contest,  but  continue 
pacific  intercourse  with  the  belligerents."  l  To  this  should  be 
added  that  the  neutrality  of  a  third  state  should  be  recognized 
by  the  belligerents,  and  the  most  correct  definition  would  be  "  the 
attitude  of  impartiality  adopted  by  third  states  towards  belliger- 
ents and  recognized  by  belligerents,  such'  attitude  creating  rights 
and  duties  between  the  impartial  states  and  the  belligerents."2 
The  development  of  the  principles  of  neutrality  and  enforcement 
of  the  acceptance  of  this  conception  were  largely  due  to  the 
attitude  of  the  United  States.  Thus,  an  English  writer  says: 

The  policy  of  the  United  States  in  1793  constitutes  an  epoch  in  the 
development  of  the  usages  of  neutrality.  There  can  be  no  doubt  that 
it  was  intended  and  believed  to  give  effect  to  the  obligations  then  incum- 
bent upon  neutrals.  But  it  represented  by  far  the  most  advanced  exist- 
ing opinions  as  to  what  those  obligations  were ;  and  in  some  points  it  went 
even  further  than  authoritative  international  custom  has  up  to  the  pres- 
ent time  advanced.  In  the  main,  however,  it  is  identical  with  the  standard 
of  conduct  which  is  now  adopted  by  the  community  of  nations.3 

Before  the  establishment  of  the  independence  of  the  United  influence 
States   there    had    been   no   consistent    theory   or    practice   of  united 
neutrality  in  Europe.    Lip  service  was  rendered  to  the  idea,  but  the^evS- 
the   principles  were   ignored   in   practice.    At  the  outbreak  of  JJjJ^JJne 
the  war  between  France  and  Great  Britain  in  1793  both  bellig-  of  neutrality 
erents,  and  particularly  France,  hoped  to  utilize  the  territory 
and  resources  of  the  United  States  for  their  own  advantage  and 
for  the  injury  of  their  opponent.   On  April  19,  1 793,  Washington, 
after  a  cabinet  discussion,  issued  a  proclamation  of  neutrality, 
warning  the  citizens  of  the  United  States  not  to  enlist  in  the 
forces  of  either  France  or  Great  Britain.    When  the  French 
ambassador,  Genet,  arrived  he  proceeded  to  fit  out  and  commis- 
sion privateers,  which  made  captures  even  within  the  territorial 
waters  of  the  United  States,  and  he  sought  to  condemn  these 

1  J.  T.  Lawrence,  The  Principles  of  International  Law  (6th  ed.),  p.  587. 

2  L.  Oppenheim,  International  Law  (2tLed.),  Vol.  II,  p.  361. 
8  W.  E.  Hall,  International  Law  (yth  ed.),  p.  632. 


560    THE  GOVERNMENT  OF  THE  UNITED  STATES 

captures  in  prize  courts  established  in  the  United  States. 
Washington  directed  his  Secretary  of  State,  Jefferson,  to  pro- 
test against  this  course.  In  his  letter  of  June  5,  1793,  Jefferson 
laid  down  the  correct  principles  which  transferred  the  question 
from  one  of  policy  and  privilege  to  a  question  of  sovereign 
right.  He  thus  wrote  that  it  was  "the  right  of  every  nation  to 
prohibit  acts  of  sovereignty  from  being  exercised  by  any  other 
within  its  limits,  and  the  duty  of  a  neutral  nation  to  prohibit 
such  as  would  injure  one  of  the  warring  powers,"  so  "  the 
granting  of  military  commissions,  within  the  United  States,  by 
any  other  authority  than  their  own,"  was  "an  infringement  on 
their  sovereignty,  and  particularly  so  when  granted  to  their  own 
citizens,  to  lead  them  to  commit  acts  contrary  to  the  duties  they 
owe  their  own  country."  1  This  was  further  amplified  by  a  set 
of  rules  adopted  by  the  cabinet,  which  the  president  attempted 
to  enforce.2  But  the  acquittal  of  Gideon  Henfield,  who  was 
accused  of  enlistment  on  a  French  vessel,  proved  that  the 
United  States  courts  had  no  law  to  enforce  which  would  cover 
such  cases.  Congress,  therefpre,  in  1794  passed  the  first  neu- 
trality act,  making  it  a  criminal  offense  to  perform  certain 
enumerated  acts  which  violated  the  neutrality  of  the  United 
States.  Other  acts  were  passed  from  time  to  time,  and  in  1818, 
during  the  revolt  of  the  Spanish-American  colonies,  the  acts 
were  carefully  revised  and  form  the  basis  for  the  present  law, 
which  was  approved  in  1909. 
position  of  In  accordance  with  this  law  in  August,  1914,  President 

the  United     TTT-I  •  i  r  , 

states  on      Wilson  issued  a  series  of  proclamations,  declaring  that  since 
durin^the    war  existed  all  persons  within  the  United  States  were  warned 
world  war    that  the  performance  of  certain  acts  was  prohibited  by  severe 
penalties.    As   general   executive  it  was   incumbent   upon   the 
president  to  see  that  the  laws  were  scrupulously  obeyed.    Viola- 
tions   of   these    principles    are    not    merely   violations    of  the 
sovereignty  of  the  United  States  but  make  the  United  States 
liable  for  damages  to  the  belligerent  who  has  suffered  wrong. 
Thus  the  United  States  held  Great  Britain  liable  for  her  failure 
to  preserve  neutrality  during  the  Civil  War,  and  collected  fifteen 

1  J.  B.  Moore,  A  Digest  of  International  Law,  Vol.  VII,  p.  886. 

2  Ibid.  p.  891. 


FOREIGN  AFFAIRS  561 

million  dollars  damages.    In  accordance  with  this  policy  President 
Wilson   used   his   influence   to  prevent   the   departure  of   the 
submarines  ordered  by  the  British  government,  and,  until  the  • 
United  States  entered  the  war,  enforced  most  impartially  our 
neutral  obligations.1 

The  status  of  neutrality  gives  the  neutral  certain  privileges.  The 
The  neutral  has  the  right  to  have  intercourse  with  both  bel- 
ligerents,  as  far  as  he  is  not  prevented  by  the  laws  of  war  applied  JjJltrai? 
in  the  right  of  search,  seizure,  and  contraband,  and  the  right  of 
blockade.  The  executive  of  the  United  States  thus  has  the 
duty  of  enforcing  these  neutral  rights.  Since  both  belligerents 
attempt  to  stretch  as  far  as  possible  their  belligerent  rights  and 
to  interrupt  or  prohibit  the  commerce  of  neutrals  with  their 
enemies,  the  task  is  most  difficult.  Thus,  during  the  Napoleonic 
wars  both  England  and  France  violated  the  neutral  rights  of 
the  United  States  and  forced  the  executive  to  attempt  to  defend 
them  by  nonintercourse,  embargo,  and  finally  war.  In  the 
World  War,  England  extended  certain  doctrines  of  contra- 
band and  blockade  beyond  all  previous  precedent.  Against 
this  the  president  ordered  the  Secretary  of  State  to  protest  and 
to  claim  damages.  In  certain  instances  these  protests  were 
listened  to  and  damages  were  paid.  Germany,  on  the  other 
hand,  through  the  violation  of  the  more  fundamental  principles 
of  international  law  and  humanity,  and  by  her  faithlessness  to 
her  pledges,  forced  the  United  States  to  retaliatory  measures. 
The  president  after  vainly  attempting  to  secure  the  passage  of 
an  act  authorizing  him  to  arm  merchantmen  proceeded  to  do  so 
on  the  basis  of  his  power  as  executive.  This  proved  insufficient, 
and  war  was  declared. 

In  another  circumstance  the  position  of  the  United   States  Neutrality 

-      ...  T      ^i  r    between  a 

concerning  its  neutrality  is  of  vital  importance.    In  the  case  ot  revoited 
a  revolted  colony  or  province  the  question  arises  whether  the  S^JJjJJJ 
United  States  shall  recognize  the  belligerency  of  such  a  com-  state 
munity  and  proclaim  neutrality  between  it  and  the  parent  state. 
If  this  is  done  the  United  States  is  debarred  from  giving  assist- 
ance to  the  parent  state  and  from  allowing  it  the  exclusive  use 

1  See  letter  of  Secretary  Bryan  to  Senator  Stone  concerning  the  enforcement 
of  neutrality,  Senate  Executive  Doc.,  63d  Cong.,  3d  sess.,  No.  716. 


562    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Enforce- 
ment of 
neutrality 
in  the 
hands 
of  the 
president 


Isolation 
the  ideal 
of  the 
foreign 
policy  of 
the  United 
States 


of  the  resources  of  the  United  States.  On  the  other  hand,  the 
revolting  community  has  as  free  access  to  the  ports  of  the  United 
States  and  may  use  the  resources  as  freely  as  the  parent  state. 
In  a  civil  war  or  revolt  a  declaration  of  neutrality  is  in  fact  of 
great  aid  to  the  revolting  community.  But  whether  of  aid  or  not, 
it  is  sometimes  a  necessary  step  for  a  neutral  to  take  in  order 
to  protect  its  own  interest  and  to  avoid  being  liable  for  certain 
acts  of  its  citizens. 

The  question  of  whether  a  declaration  of  neutrality  should  be 
issued  is  entirely  in  the  hands  of  the  president.  Congress  has 
no  power  to  make  such  a  proclamation  by  resolution  or  to  pre- 
vent the  president  from  issuing  such.  Furthermore,  the  whole 
question  of  the  enforcement  of  our  neutral  duties  and  rights  is 
in  the  hands  of  the  president.  As  regards  acts  committed  within 
the  United  States  he  may  have  to  rely  upon  laws  passed  by 
Congress,  which  he,  as  executive,  must  enforce.  As  regards  our 
neutral  rights  on  the  high  seas  and  in  foreign  countries  he  is 
the  sole  judge.  As  commander  in  chief  of  the  army  and  navy 
he  has  ample  power  to  enforce  these  rights,  but  this  also  carries 
the  responsibility  of  involving  the  United  States  in  war. 

POSITION  OF  THE  UNITED  STATES  IN  FOREIGN  AFFAIRS 

The  ideal  of  the  foreign  policy  of  the  United  States  may 
well  be  expressed  by  the  word  "  isolation."  This  was  voiced  by 
Washington  in  his  farewell  address  when  he  said  :  "  Europe  has 
a  set  of  primary  interests,  which  to  us  have  none,  or  a  very  remote 
relation.  ...  It  is  our  true  policy  to  steer  clear  of  permanent 
alliances  with  any  portion  of  the  foreign  world.  .  .  ." 1  This  idea 
was  repeated  by  Jefferson  in  his  first  inaugural  where  he  urged 
"honest  friendship  with  all  nations,  entangling  alliances  with  none  " 
as  the  foundation  of  the  foreign  policy  of  the  United  States. 

While  these  words  undoubtedly  express  the  American  ideal 
and  tradition,  the  actual  course  of  foreign  relations  has  been  far 
different.  From  the  very  foundation  of  the  colonies  America 
has  been  involved  in  European  affairs ;  its  politics  have  re- 
flected European  politics,  and  its  wars  followed  European  wars. 


1  J.  D.  Richardson,  Messages  of  the  Presidents,  Vol.  I,  pp.  222-223. 


FOREIGN  AFFAIRS  563 

Indeed,  the  great  Seven  Years'  War  began  with  the  collision  of  Actual. 
French  and  English  frontiersmen  in  the  backwoods  of   Penn- 
sylvania.   The  achievement  of  the  independence  of  the  United  j 
States  was  aided  if  not  made  possible  by  European  jealousies, 


and  the  French  fleet  made  Yorktown  the  final  victory  for  powere" 
the  Revolution.  American  trade  and  commerce  were  desired 
by  both  France  and  England,  and  only  the  weakness  of  the 
Articles  of  the  Confederation  prevented  favorable  treaties.  The 
greater  part  of  the  territory  now  occupied  by  the  United  States 
was  held  by  European  states  whose  title  must  be  extinguished 
by  purchase,  war,  or  negotiation  ;  and  the  acquisition  of  the 
Louisiana  territory  was  not  unconnected  with  the  failure  of 
Napoleon's  plans.  Finally,  being  remote  from  Europe  and  unin- 
terested in  her  dynastic  struggles,  the  United  States  soon  came 
to  occupy  the  position  of  the  most  consistent  neutral  in  the 
world.  To  define  its  position  and  defend  the  neutral  rights  it 
sought  to  enjoy,  it  was  involved  in  a  long  series  of  diplomatic 
negotiations  and  finally  in  war.  Thus,  in  its  early  history,  far 
from  occupying  an  isolated  position,  the  United  States  was  con- 
stantly involved  in  European  quarrels  and  became  the  leader  in 
the  enforcement  of  at  least  one  principle. 

Down  to  1814  the  most  dominant  characteristic  of  the  foreign  The  main- 
policy  of  the  United  States  was  the  maintenance  of  neutrality,  neutrality* 
together  with  the  establishment  @f  the  duties  and  privileges  per- 
taining  to  a  neutral,  and  the  struggle  for  the  freedom  of  the 
seas.  In  order  to  enforce  her  position  in  these  contentions 
the  United  States  has  twice  engaged  in  war,  once  with  the 
Barbary  pirates  and  once  with  Great  Britain.  The  War  of  1812, 
although  fought  with  Great  Britain,  might  as  well  have  been 
fought  against  France.  The  underlying  cause  of  the  war  was 
the  right  of  neutrals  to  trade  in  noncontraband  with  both  bel- 
ligerents. Both  France  and  England  violated  this  right  ;  indeed 
Napoleon  displayed  great  cynicism  and  perfidy  ;  but  the  outrages 
appealing  to  popular  passions  were  committed  by  Great  Britain. 
Impressment  of  American  seamen  stirred  popular  indignation 
more  quickly  than  the  seizure  of  American  cargoes.  Although 
the  treaty  of  Ghent  failed  to  settle  the  questions  involved,  both 
France  and  England  in  practice  adopted  the  contentions  of  the 


564    THE  GOVERNMENT  OF  THE  UNITED  STATES 

United  States,  which  indeed  became  the  foundation  of  the  rules 
of  international  law  until  the  World  War  of  1914. 

The  elimination  of  European  powers  from  the  territory  now 
governed  by  the  United  States  was  a  task  which  occupied  the 
administration  throughout  the  first  fifty  years  after  the  establish- 
ment of  the  government.  The  process  began  with  the  purchase 
of  Louisiana  in  1803,  by  which  the  navigation  of  the  Mississippi 
came  under  the  exclusive  control  of  the  United  States.  Vast 
but  undefined  territory  was  obtained.1  To  define  this  acquisition 
and  round  out  the  continental  territory  a  series  of  negotiations, 
purchases,  and  arbitrations,  and  one  war  were  required.  The 
process  began  with  the  purchase  of  Florida  from  Spain  in  1819. 
Unfortunately,  the  southwestern  boundary  was  unsatisfactory  — 
a  condition  which  resulted  in  the  independence  of  Texas,  its 
annexation,  and  the  subsequent  war  with  Mexico.  As  a  result 
of  this  war  the  United  States  obtained  California  and  the  terri- 
tory north  of  the  Rio  Grande.  In  the  extreme  northwest  and 
northeast  there  were  boundary  disputes  with  Great  Britain.  The 
northeastern  boundary  was  finally  settled  in  1842  by  the  Webster- 
Ashburton  treaty,  while  after  the  experiment  in  joint  occupation 
the  Oregon  question  was  settled  in  1846.  In  1867  Alaska  was 
purchased  from  Russia,  which  completed  the  territory  held  by 
the  United  States  upon  the  continent.  Since  that  time  several 
disputes  have  arisen  with  Great  Britain  over  the  definition 
of  the  fishing  privileges  in  the  northeast,  the  fur  seals  in  the 
northwest,  and  determination  of  the  Alaskan  boundary.  These, 
however,  have  been  settled  by  negotiation  and  arbitration. 

The  most  peculiarly  American  foreign  policy,  however,  is 
that  contained  in  the  Monroe  Doctrine.2  Historically  this  arose 
over  the  possibility  that  the  Holy  Alliance  —  a  combination  of 
Russia,  Prussia,  Austria,  and  France  —  would  assist  Spain  in 
regaining  her  revolted  colonies  in  South  and  Central  America. 
Not  unconnected  with  the  announcement  of  the  doctrine  was  the 

1  In  the  treaty  of  1803  France  promised  to  cede  the  same  territory  that 
Spain  in  1800  had  ceded  to  France  in  these  terms:  "with  the  same  extent 
that  it  has  now  in  the  hands  of  Spain,  and  that  it  had  when   France  pos- 
sessed it,  and  such  as  it  should  be  after  the  treaties  subsequently  entered 
into  between  Spain  and  other  States." 

2  See  A.  B.  Hart,  The  Monroe  Doctrine. 


FOREIGN  AFFAIRS  565 

answer  to  Russia's  attempt  to  extend  her  jurisdiction  in  the 
northwest.  The  message  itself  lays  down  certain  rules  which 
have  guided  the  United  States  in  its  foreign  relations  and  cer- 
tain principles  which  the  United  States  has  attempted  to  enforce 
upon  other  nations. 

The  first  and  most  fundamental  of  these  principles  is  the 
doctrine  of  the  two  spheres  of  influence : 

...  In  the  wars  of  the  European  powers  in  matters  relating  to  The  two 
themselves  we  have  never  taken  any  part,  nor  does  it  comport  with 
our  policy  so  to  do.  It  is  only  when  our  rights  are  invaded  or  seriously 
menaced  that  we  resent  injuries  or  make  preparation  for  our  defense. . . . 
With  the  movements  in  this  hemisphere  we  are,  of  necessity,  more 
immediately  connected  and  by  causes  which  must  be  obvious  to  all 
enlightened  and  impartial  observers. 

This  was  but  a  statement  of  the  principles  held  by  Washington 
and  Jefferson  and  the  attempted  policy  of  the  government  since 
its  foundation.  It  rests  upon  the  geographical  division  of  the 
two  hemispheres  rather  than  upon  actual  fact.  In  the  early  years 
of  the  government  Spain  and  Great  Britain  and  at  one  time 
France  held  greater  territorial  possessions  in  the  Americas  than 
did  the  United  States ;  while  from  the  very  first  the  commer- 
cial relations  of  the  Americas  to  Europe  prevented  any  absolute 
separation  of  interests.  Nevertheless,  until  the  time  of  the 
Spanish-American  War  it  was  a  convenient  doctrine  upon  which 
to  base  protests  against  European  intervention  in  the  Western 
hemisphere. 

A  second  dictum  closed  the  American  continents  to  further  The 

..  r  i    •        i  -r»         •    >        i    •  American 

colonization.    This  was  found  in  the  answer  to  Russia  s  claims,  continents 
and  is  briefly  and  tersely  stated  in  these  words  :•  further" t 

colonization 
.  .  .  The  occasion  has  been  judged  proper  for  asserting  as  a  pnn-  by  Euro- 

ciple  in  which  the  rights  and  interests  of  the  United  States  are  involved,   pea 
that  the  American  continents,  by  the  free  and  independent  condition 
which  they  assumed  and  maintain,  are  henceforth  not  to  be  considered 
as  subjects  for  future  colonization  by  any  European  powers. 

This  did  not  mean  that  colonies  already  existing  should  be  dis- 
turbed. Indeed  Monroe  was  explicit  upon  that  point :  "  With 
the  existing  colonies  or  dependencies  of  any  European  power 


566    THE  GOVERNMENT  OF  THE  UNITED  STATES 

we  have  not  interfered  and  shall  not  interfere."  Nor  did  it  pre- 
vent combinations  or  disintegrations  of  the  existing  American 
states.  This  process  began  almost  at  once  and  continued  through- 
out the  nineteenth  century.  Finally  it  was  not  a  self-denying 
ordinance  to  limit  the  expansion  of  the  United  States,  as  Mexico, 
Spain,  and  Colombia  found  to  their  cost.  It  was,  however,  a 
statement  of  the  belief  that  for  the  safety  of  the  United  States 
no  further  European  colonization  should  be  allowed  in  America. 
It  was  based  upon  self-interest  and  self-protection,  rather  than 
upon  idealistic  grounds. 

The  doctrine  of  mutual  nonintervention  is  in  the  nature  of  a 
quid  pro  quo  and  is  based  upon  the  doctrine  of  the  two  spheres. 
Although  applied  especially  to  Spain  and  the  Holy  Alliance  it 
has  been  extended  to  cover  intervention  from  other  sources.  In 
its  enunciation,  however,  it  was  applied  rather  strictly  to  the 
colonies  which  had  successfully  revolted  : 

But  with  the  Governments  who  have  declared  their  independence, 
and  maintained  it,  and  whose  independence  we  have  on  great  considera- 
tion and  on  just  principles,  acknowledged,  we  could  not  view  any 
interposition  for  the  purpose  of  oppressing  them,  or  controlling  in  any 
other  manner  their  destiny,  by  any  European  power,  in  any  other 
light  than  as  the  manifestation  of  an  unfriendly  disposition  towards 
the  United  States. 

From  a  statement  thus  limited  the  doctrine  of  nonintervention 
has  been  extended  to  prevent  punitive  actions  which  the  United 
States  considers  unwise  from  her  point  of  view.  Thus  the 
United  States  has  become  in  a  certain  sense  the  guardian  and 
sponsor  for  the  good  behavior  of  the  Americas. 

Finally,  this  protest  was  lodged  against  the  political  system  of 
the  Holy  Alliance : 

The  political  system  of  the  allied  powers  is  essentially  different  .  .  . 
from  that  of  America.  ...  It  is  impossible  that  the  allied  powers  should 
extend  their  political  system  to  any  portion  of  either  continent  without 
endangering  our  peace  and  happiness  ;  nor  can  anyone  believe  that  our 
Southern  brethren,  if  left  to  themselves,  would  adopt  it  of  their  own 
accord.  It  is  equally  impossible,  therefore,  that  we  should  behold  such 
interposition  in  any  form,  with  indifference. 


FOREIGN  AFFAIRS  567 

If  this  meant  the  use  of  the  Holy  Alliance  or  any  combination 
of  powers  against  American  states,  it  remains  a  principle  of  the 
policy  of  the  United  States  to  this  day.  But  on  the  other  hand, 
if  it  is  aimed  solely  against  monarchical  institutions,  as  such,  it 
has  lost  much  of  its  force. 

The  Monroe  Doctrine  was  effective  for  the  purpose  for  which  The  effect 
it  was  enunciated.  It  prevented  the  Holy  Alliance  from  giving  Monroe 
aid  to  Spain  in  the  attempt  to  recover  her  revolted  colonies.  Doctrine 
It  also  answered  Russia's  pretensions  in  the  northwest.  But  it 
has  accomplished  even  more.  In  its  original  form  and  in  the 
logical  development  of  its  ideas  it  has  become  the  keystone  of 
the  policy  of  the  United  States  toward  South  America.  Thus 
it  has  prevented  any  extension  of  the  existing  European  colonies 
and  the  establishment  of  new  ones.  It  has  prevented  European 
nations  from  occupying  territory,  even  temporarily,  for  punitive 
reasons.  Thus  the  principles  of  the  doctrine,  although  not  its 
express  words,  were  employed  in  1866  to  compel  France  to 
withdraw  from  Mexico,  and  in  1895  President  Cleveland,  invok- 
ing the  doctrine  by  name,  forced  Great  Britain  to  submit  to 
arbitration  a  boundary  dispute  it  had  with  Venezuela.  Even  at 
the  outbreak  of  the  World  War  Count  von  Bernstorff  felt  it 
necessary  to  assure  the  Department  of  State  that  should  Ger- 
many come  out  victorious  she  would  not  seek  expansion  in 
South  America.  Subsequent  revelations  have  cast  considerable 
doubt  upon  the  sincerity  of  this  assurance. 

Under  whatever  name  the  principle  may  go  it  differs  little  from  The 

.    ,  111  Monroe 

the  principle  of  nonintervention.    It  means  and  has  been  success-  Doctrine  a 
fully  asserted  that  the  United  States  will  allow  no  intervention  in 
American  affairs  contrary  to  what  it  considers  its  own  interests, 

It  does  not  mean  that  the  United  States  denies  itself  the  privilege  of  the 

of  intervening  or  even  of  acquiring  territory  when  its  interests  states  and 

seem  to  demand  it.    Thus  Mexico  was  forced  to  surrender  Cali-  the  "united 


fornia;  and  Spain,  Porto  Rico;  and  Colombia,  Panama.  Although 
apparently  it  would  allow  South  American  states  to  choose  their  interests 
own  form  of  government,  yet  Presidents  Roosevelt,  Taft,  and  American 
Wilson  have  determined  the  character  of  government  for  Santo  s 
Domingo,  and  President  Wilson  refused  to  recognize  the  govern- 
ment set  up  by  General  Huerta  in  Mexico.  As  applied  to  South 


568    THE  GOVERNMENT  OF  THE  UNITED  STATES 

America  it  is  a  one-sided  doctrine,  protecting  the  interests  of  the 
United  States  and  what  the  United  States  considers  to  be  the 
best  interest  of  the  Americas. 

As  regards  the  quid  pro  quo  of  the  doctrine,  that  the  United 
States  would  not  intervene  in  European  quarrels,  circumstances 
have  altered  this  policy.  Until  the  close  of  the  nineteenth  century 
this  principle  was  closely  adhered  to.  Thus,  although  great  sym- 
pathy was  excited  by  the  revolt  of  Greece  in  1826  and  of  Hun- 
gary in  1848,  the  United  States  refused  to  intervene  or*  to  depart 
from  its  policy  of  recognizing  the  de  facto  government.  The 
Spanish-American  War  changed  this.  As  a  result,  the  United 
States  became  a  colonizing  power  in  the  European  sense  of  the 
term,  with  colonies  in  both  the  Atlantic  and  Pacific  Oceans 
which  could  never  be  raised  to  statehood.  As  such  a  power  the 
United  States  was  exposed  to  the  jealousies  of  European  powers 
and  became  increasingly  involved  in  questions  and  disputes  con- 
cerning colonial  expansion  and  the  exploitation  of  less  civilized 
territory.  Thus  John  Hay,  when  Secretary  of  State,  negotiated 
an  agreement  with  Japan  and  several  European  powers  designed  to 
secure  the  "  open  door,"  or  equality  of  trade  conditions,  in  China. 
In  1900  American  troops  were  dispatched  to  China  to  rescue  the 
legations  from  the  Boxer  rebels.  This  was  perhaps  the  nearest  to 
an  alliance  with  European  states  that  the  United  States  had  come 
before  the  World  War.  In  other  instances,  such  as  the  Hague 
treaties  in  1899  and  1907  and  the  Algeciras  conference  of  1906, 
the  United  States  disclaimed  any  intent  "  to  depart  from  the 
traditional  American  foreign  policy  which  forbids  participation  by 
the  United  States  in  the  settlement  of  political  questions  which 
are  entirely  European  in  their  scope."  l  Nevertheless,  the  United 
States,  because  of  its  size,  resources,  and  possessions,  occupies  a 
very  different  position  from  that  which  it  held  in  1823.  Irresistibly 
the  United  States  has  been  drawn  into  the  current  of  European 
questions.  Thus  the  United  States  was  drawn  into  the  World 
War,  and  the  influence  which  President  Wilson  exerted  in  the. 
peace  negotiations  showed  the  altered  position  of  the  country 
in  European  councils.  But  the  change  from  attempted  isolation 
to  active  cooperation  is  by  no  means  unanimously  welcomed. 

1  J.  B.  Moore,  Principles  of  American  Diplomacy,  p.  440. 


FOREIGN  AFFAIRS  569 

THE  UNITED  STATES  AND  INTERNATIONAL  LAW 
A  leading  authority  thus  defines  international  law  : 

International  law  consists  of  certain  rules  of  conduct  which  modern 
civilized  states  regard  as  being  binding  on  them  in  their  relations  with 
one  another  with  a  force  comparable  in  nature  and  degree  to  that  bind- 
ing the  conscientious  person  to  obey  the  laws  of  his  country,  and  which 
they  also  regard  as  being  enforceable  by  appropriate  means  in  case 
of  infringement.1 

International  law  thus  does  not  consist  of  vague  generalizations  inter- 
or  desires  but  of  rules  which  are  enforceable  in  the  courts  of  state.  ^con- 
Thus,  in  the  eighteenth  century,  Lord  Talbot  in  enforcing  inter-  ^g*0* 
national  law  held  "that  the  law  of  nations,  in  its  fullest  extent,  enforced 
was  a  part  of  the  law  of  England."  2    In  1784  a  French  citizen  courts 
was  tried,  convicted,  and  sentenced  by  the  Pennsylvania  court 
because  "  the  Law  of  nations  "  was  "  in  its  full  extent  "  a  "  part 
of  the  law  of  Pennsylvania."  3    In  1793  Jefferson  wrote  to  the 
French  minister  Genet,  "  The  law  of  nations  makes  an  integral 
part  of  the  laws  of  the  land"4;  and   in  1815   Chief  Justice 
Marshall  held  that  the  court  was  "bound  by  the  law  of  nations 
which  is  a  part  of  the  law  of  the  land."  5 

The  rules  which  go  to  make  up  this  code  originated  in  custom,  validity  of 
or  treaties,  or  conference,  or  decisions  of  the  courts,  or  conten-  inter. 


tions  of  various  states  which  they  have  made  good  by  war  or 
diplomatic  negotiation.  The  great  and  most  decisive  test  of  their  °n  practice 
validity  is  the  sanction  given  them  by  acceptance  and  practice. 
Thus  in  1899  the  Supreme  Court  reversed  the  decision  of  the 
District  Court  and  restored  the  proceeds  of  the  sale  of  a  vessel, 
with  damages,  on  the  ground  that  by  the  law  of  nations  fishing 
vessels  were  not  liable  to  capture  as  prizes  in  time  of  war.6  This 
decision  is  interesting,  not  so  much  on  account  of  the  amount 
involved  or  even  the  importance  of  the  principle  of  exempting 

1  W.  E.  Hall,  International  Law  (;th  ed.),  p.  i. 

2  Triquet  and  others  v.  Bath,  J.  B.  Scott,  Cases  on  International  Law,  p.  7. 

3  Respublica  v.  De  Longchamp,  i  Ball,  iii  ;  J.  B.  Moore,  A  Digest  of  Inter- 
national Law,  Vol.  I,  p.  10. 

4  J.  B.  Moore,  A  Digest  of  International  Law,  Vol.  I,  p.  10. 
6  The  Nereide,  9  Cranch,  388,  423.  » 

6  The  Paquette  Havana,  175  U.  S.  677. 


570    THE  GOVERNMENT  OF  THE  UNITED  STATES 

fishing  smacks  as  it  is  as  an  example  of  the  application  of  the 
customary  law  of  nations,  unsupported  by  treaties,  agreements, 
or  statutes.  Here  the  court  unhesitatingly  applied  the  principles 
of  international  law  as  set  forth  by  writers  and  sanctioned 
by  custom. 

In  helping  develop  international  law  the  United  States  has 
played  an  influential  part  in  several  important  fields.  Hardly 
was  the  government  established  when  the  French  Revolution 
brought  renewed  war  between  France  and  England.  Because  of 
its  position  as  a  neutral,  desiring  peaceful  commerce  with  both 
belligerents,  the  United  States  insisted  upon  a  liberal  definition 
of  the  rights  of  neutrals,1  but,  with  a  sense  of  justice  which  does 
not  always  characterize  nations  in  their  conduct,  she  also  assumed 
obligations  far  beyond  those  required  at  that  date.  As  has  been 
seen,  the  principles  contended  for  by  the  United  States  have 
generally  been  accepted  as  the  basis  of  the  international  law  of 
neutrality.  In  like  manner,  the  contention  of  the  United  States 
that  free  ships  made  free  goods,  which  means  that  the  neutral 
flag  protects  noncontraband  commerce  from  seizure  when  on 
board  a  neutral  vessel,  and  her  contention  that  a  blockade  to  be 
binding  must  be  effective,  were  accepted  by  the  Declaration  of 
Paris  in  1856.  Because  of  the  failure  of  this  declaration  to  make 
all  private  property  at  sea  safe  from  capture  the  United  States 
refused  to  ratify  the  convention,  although  she  has  consistently 
acted  in  accord  with  its  principles.  The  United  States  has 
generally  set  the  example  of  proper  recognition  of  both  belliger- 
ency and  independence,  and,  because  of  the  doctrine  of  the  two 
spheres  of  influence,  has  not  until  recently  been  forced  to  take 
embarrassing  positions  in  European  quarrels,  where  her  interest 
might  compel  her  to  depart  from  the  impartial  position  she 
has  occupied. 

In  1899  and  1907  the  United  States  was  an  active  participant 
at  the  Hague  conferences.  Although  it  refused  "  to  depart  from 
its  traditional  policy  of  not  intruding  upon,  interfering  with,  or 
entangling  itself  in  the  political  questions  or  policy  or  internal 
administration  of  any  foreign  state  "  or  relinquishing  "  its  tradi- 
tional attitude  towards  purely  American  questions,"  it  ratified 

1  See  pp.  559-560 


FOREIGN  AFFAIRS  571 

the  conventions  framed  at  these  conferences  for  the  pacific  set- 
tlement of  international  disputes.1 

Among  these  conventions  was  one  which  established  an  arbi-  (5) 
tral  court  for  the  settlement  of  questions  incapable  of  diplomatic 
solution.  Not  only  did  the  United  States  accept  the  principle 
but  it  was  one  of  the  first  states  to  refer  a  question  to  the  court 
for  decision.  But  the  United  States  has  been  willing  to  go 
even  further.  In  1910  President  Taft  negotiated  treaties  which  [TheTaft 
made  arbitration  compulsory  for  all  controversies  which  were  treaties]011 
"  justiciable  by  reason  of  being  acceptable  of  decision  by  the 
application  of  the  principles  of  law  or  equity."  The  treaties 
furthermore  provided  that  when  the  disputants  disagreed  as  to 
whether  the  matter  was  justiciable  the  decision  of  this  question 
should  be  made  by  a  joint  commission  of  inquiry.  This  clause 
the  Senate  struck  out.  Beginning  in  1913  Secretary  Bryan,  with  [The  Bryan 
the  approval  of  the  president,  began  to  renew  the  existing  arbitra-  treaties]011 
tion  treaties  as  they  expired,  with  this  important  additional 
proviso :  that  all  questions  of  every  nature  whatsoever,  which 
diplomacy  should  fail  to  settle,  should  be  submitted  to  an  inter- 
national commission,  and  that  the  nations  should  agree  not  to 
declare  war  or  begin  hostilities  during  the  investigation  of  this 
commission.  Twenty  such  treaties  were  ratified  between  1914 
and  1916  and  ten  more  were  signed.  The  states  assenting  to 
this  principle  include  practically  all  the  American  republics, 
China,  Persia,  and  all  the  powers  of  Europe  except  Germany 
and  her  allies. 

Without  doubt  the  World  War  did  much  to  hasten  the  adop-  president 
tion  of  these  treaties  as  a  means  of  avoiding  future  calamities. 
President  Wilson,  however,  has  made  an  additional  suggestion 
for  the  maintenance  of  the  future  peace  of  the  world.  Speaking  isolation 
in  May,  1916,  he  was  apparently  ready  to  depart  from  the 
traditional  position  of  aloofness  held  by  the  United  States; 
indeed,  circumstances  had  driven  the  United  States  from  this 
position,  so  President  Wilson  truly  said : 

We  are  participants,  whether  we  would  or  not,  in  the  life  of  the 
world.  The  interests  of  all  nations  are  our  own  also.  We  are  partners 
with  the  rest.  What  affects  mankind  is  inevitably  our  affair  as  well  as 

1  J.  B.  Cort.  (ed.),  The  Hague  Conventions  and  Declarations  of  1899  and  1907. 


Necessity 
for  an  inter- 
national 
agreement 


President 
Wilson  con- 
siders the 
League  of 
Nations 
necessary 
for  peace 


572    THE  GOVERNMENT  OF  .THE  UNITED  STATES 

the  affair  of  tn"e  nations  of  Europe  and  Asia.  .  .  .  Only  when  the  great 
nations  of  the  world  have  reached  some  sort  of  agreement  as  to  what 
they  hold  to  be  fundamental  to  their  common  interest,  and  as  to  some 
feasible  method  of  acting  in  concert  when  any  nation  or  group  of 
nations  disturb  those  fundamental  things,  can  we  feel  that  civilization 
is  at  last  in  a  way  of  justify  ing -existence  and  claiming  to  be  finally 
established. 

He  felt  sure  that  the  United  States  would  wish  "  an  universal 
association  of  the  nations  to  maintain  the  inviolate  security  of 
the  highway  of  the  seas  for  the  common  and  unhindered  use  of 
all  the  nations  of  the  world,  and  to  prevent  any  war  begun  either 
contrary  to  treaty  covenants  or  without  warning,  and  full  sub- 
mission of  the  causes  to  the  opinion  of  the  world  —  a  virtual  • 
guarantee  of  territorial  integrity  and  political  independence."  1 
In  other  words,  as  far  as  it  lay  in  his  power  the  president  was 
ready  to  commit  the  United  States  to  the  principle  that  the 
peace  of  the  world  should  be  maintained  through  a  League  of 
Nations,  which  should  enforce  its  judgments  upon  the  world. 
This  is  not  unlike  other  proposals  which  have  been  made  for  the 
same  purpose;  but  it  is  significant  that  for  the  first  time  the 
executive  of  the  United  States  should  adopt  such  a  proposal, 
which  reverses  the  traditional  foreign  policy  of  the  United  States. 
Before  the  United  States  entered  the  war  President  Wilson 
had  come  to  the  conclusion  that  a  League  of  Nations  was 
necessary.  For,  in  his  address  to  the  Senate,  January  22,  1917, 
he  declared : 

Mere  agreements  may  not  make  peace  secure.  It  will  be  absolutely 
necessary  that  a  force  be  created  as  a  guarantor  of  the  permanency  of 
the  settlement,  so  much  greater  than  the  force  of  any  nation  now 
engaged  or  any  alliance  hitherto  formed  or  projected,  that  no  nation, 
no  probable  combination  of  nations  could  face  or  withstand  it.  If  the 
peace  presently  to  be  made  is  to  endure,  it  must  be  a  peace  made 
secure  by  the  organized  major  force  of  mankind. 

In  1918  he  was  still  more  explicit,  and  in  his  Liberty  Loan 
address  at  New  York,  on  September  27,  he  said:  "And,  as  I 
see  it,  the  constitution  of  that  League  of  Nations  and  the  clear 


1  E.  E.  Robinson  and  V.  J.  West,  The  Foreign  Policy  of  Woodrow  Wilson,  p.  362. 


FOREIGN  AFFAIRS  573 

i 

definition  of  its  objects  must  be  a  part,  is  in  a  sense  the  most 
essential  part,  of  the  peace  settlement  itself." 

In  accordance  with  President  Wilson's  desires  the  Allies  and  The  cove- 
the  United  States  gave  their  first  attention  to  the  formation  of  League*  rf* 
a  covenant  for  the  League  of  Nations.    This  was  an  integral 
part  of  the  treaty  which  Germany  was  forced  to  accept.    The  peace 
treaty  was  submitted  to  the  United  States  Senate,  July  10,  1919, 
and   debated   for   four   months.     Efforts  to  amend  the  treaty    • 
proved   unavailing.     The   majority   of  the   Senate,   which  was  The  senate 
Republican,  adopted  reservations  which  in  the  opinion  of  Presi- 
dent  Wilson  nullified  the  purpose  of  the  treaty.    He  therefore 
urged  the  Democrats  to  vote  against  the  ratification  rather  than  ^ 
to  accept  such  reservations.    This  was  done,  and  the   Senate 
adjourned  November  19,  1919. 


CHAPTER  XXII 

THE  GOVERNMENT  OF  TERRITORIES 
THE  POWER  OF  THE  UNITED  STATES  TO  ACQUIRE  TERRITORY 

The  Constitution  of  the  United  States  makes  no  express 
provision  for  the  acquisition  of  territory.  This  right,  however, 
has  been  derived  at  various  times  from  the  following  sources : 
(i)  the  power  to  admit  new  states  into  the  Union,1  (2)  the 
power  to  make  treaties,2  (3)  the  power  to  declare  and  carry  on 
war,3  (4)  the  power,  as  a  sovereign  state,  to  acquire  territory  by 
discovery  and  occupation  or  by  the  methods  recognized  as 
proper  by  international  usage.4 

At  the  time  of  the  adoption  of  the  Constitution  the  United 
States  possessed  vast  territory  not  included  within  the  boundaries 
of  any  of  the  States.  This  was  the  Northwest  Territory,  ceded 
to  the  old  Confederation  with  the  intention  of  being  ultimately 
divided  into  states  and  admitted  into  the  Union.  The  Consti- 
tution itself,  moreover,  provides  that  Congress  may  admit  new 
states  and  contains  limitations  upon  the  exercise  of  this  power. 
Therefore  it  is  wholly  fair  to  assume  that  the  framers  of  the 
Constitution  fully  expected  that  this  power  would  be  used,  as 
indeed  it  was  by  the  admission  of  Kentucky  in  1792,  of  Ten- 
nessee in  1796,  and  of  Ohio  in  1803.  But  these  states  were 
composed  of  territory  taken  from  that  already  in  the  possession 
of  the  United  States  or  one  of  the  states  when  the  Constitution 
was  adopted.  Another  and  more  difficult  problem  arose  over 
the  acquisition  of  the  Louisiana  territory.  Jefferson  evidently 
had  some  doubts  as  to  his  power  and  suggested  a  constitutional 

1  The  Constitution  of  the  United  States,  Article  IV,  Sect,  iii,  clause  i. 

2  Ibid.  Article  II,  Sect,  ii,  clause  2. 

3  Ibid.  Article  I,  Sect,  viii,  clause  n. 

4  See  W.  W.  Willoughby,  The   Constitutional  Law  of  the   United   States, 
Vol.  I,  p.  325. 

574 


THE  GOVERNMENT  OF  TERRITORIES  575 

; 

amendment  to  remove  them.1  If  the  power  to  admit  states 
alone  be  relied  upon  to  permit  acquisitions  it  is  quite  probable 
that  Jefferson's  scruples  were  well  founded  and  that  constitutional 
amendment  might  be  necessary. 

But  the  power  to  acquire  territory  through  war  or  treaty  stands  Marshall 
on  no  such  dubious  ground.  Thus,  in  dealing  with  a  case  arising  unfte'd** 
out  of  the  acquisition  of  Florida,  Marshall  held  as  follows  :  "  The  stat,.es 

might 

Constitution  confers  absolutely  on  the  government  of  the  Union,  acquire  t«r- 
the  powers  of  making  war,  and  of  making  treaties  ;  consequently,  conquest 
that  government  possesses  the  power  of  acquiring  territory,  either  ° 
by  conquest  or  by  treaty."  2  This  position  has  been  affirmed  again 
and  again  and  finally  restated  in  that  most  complete  reexamina- 
tion  of  the  subject,  the  so-called  "  Insular  Cases." 

In  all  of  these  cases,  however,  the  acquisition  of  territory  is  A  war  can 
regarded  simply  as  a  means  for  carrying  on  war  and  conducting  assumed  to 


foreign  relations.    Nowhere  is  it  clearly  stated  that  the  Constitu-  t 

tion  authorizes  a  war  for  conquest  ;  in  fact,  the  reverse  is  true,  acquisition 

of  territory 

as  was  emphatically  stated  in  1850: 

But  the  genius  and  character  of  our  institutions  are  peaceful,  and 
the  power  to  declare  war  was  not  conferred  upon  Congress  for  the 
purposes  of  aggrandizement,  but  to  enable  the  general  government  to 
vindicate  by  arms,  if  it  should  become  necessary,  its  own  rights  and 
the  rights  of  its  citizens. 

A  war,  therefore,  declared  by  Congress,  can  never  be  presumed  to  be 
waged  for  the  purpose  of  conquest  or  the  acquisition  of  territory  ;  nor 
does  the  law  declaring  war  imply  an  authority  to  the  president  to  enlarge 
the  limits  of  the  United  States  by  subjugating  the  enemy's  territory.3 

Another  possible  source  of  power  is  found  in  the  fact  that 
in  international  affairs  the  general  government  is  considered  to 

1  He  seems  to  have  drawn  a  distinction  between  the  power  to  acquire  territory 
and  the  power  to  incorporate  it  into  the  Union.    Thus,  in  January,  1803,  he 
wrote  to  Gallatin  :  "There  is  no  constitutional  difficulty  as  to  the  acquisition  of 
territory,  and  whether  when  acquired  it  may  be  taken  into  the  Union  by  the 
Constitution  as  it  now  stands  will  become  a  question  of  expediency.    I  think  it 
will  be  safer  not  to  permit  the  enlargement  of  the  Union  but  by  the  amendment 
of  the  Constitution."  —Quoted  by  W.  W.  Willoughby,  The  Constitutional  Law 
of  the  United  States,  Vol.  I,  p.  330. 

2  American  Insurance  Co.  v.  Canter,  I  Peters,  511,  542. 
8  Flemings.  Page,  9  How.  603,  614. 


576    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Territory 
may  be 
acquired  by 
the  United 
States  as 
by  any 
sovereign 
state 


possess  all  the  powers  of  other  sovereign  independent  states 
except  those  expressly  withheld  from  it  by  the  Constitution. 
This  doctrine  has  been  sanctioned  by  the  court  in  these  words : 

The  United  States  are  a  sovereign  and  independent  nation,  and  are 
vested  by  the  Constitution  with  the  entire  control  of  international  rela- 
tions, and  with  all  the  powers  of  government  necessary  to  maintain 
that  control  and  to  make  it  effective.1 

According  to  this  doctrine  the  United  States  may,  like  any 
other  independent  sovereign  state,  conduct  foreign  relations  and 
annex  territory.  Indeed,  in  numerous  instances  this  has  been 
done.  American  citizens,  acting  upon  the  authority  of  the 
Guano  Law  of  1856,  have  acquired,  by  discovery,  places  over 
which  the  United  States  exercises  jurisdiction.  This  has  been 
approved  by  the  court  in  these  words : 

By  the  law  of  nations,  recognized  by  all  civilized  states,  dominion  of 
new  territory  may  be  acquired  by  discovery  and  occupation.  .  .  .  This 
principle  affords  ample  warrant  for  the  legislation  of  Congress  concerning 
Guano  Islands.2 

The  United  States  has  acquired  territory  in  three  ways,  by  statute, 
by  trgajy,  and  by  joint  resolution. 

The  Guano  Islands  Act  of  i856,3  just  referred  to,  provides: 

Whenever  any  citizen  of  the  United  States  shall  "  discover  a  deposit 
of  guano  on  any  island,  rock  or  key,  not  within  the  lawful  jurisdiction 
of  any  other  government,  and  not  occupied  by  the  citizens  of  any  other 
government,  and  shall  take  peaceable  possession  thereof  and  occupy 
the  same,  such  island,  rock,  or  key  may,  at  the  discretion  of  the 
President  of  the  United  States,  be  considered  as  appertaining  to 
the  United  States." 

By  this  means  the  jurisdiction  of  the  United  States  has  been 
extended  over  nearly  a  hundred  places.  The  constitutionality  of 
this  has  just  been  discussed. 

The  usual  method,  however,  of  acquiring  territory  is  by 
treaty.  Such  treaties,  like  all  other  treaties,  are  negotiated 

1  Fong  Yue  Tingv.  United  States,  149  U.  S.  698,  711. 

2  Jones  v.  United  States,  137  U.S.  202,  212. 

8  Revised  Statutes  of  United  States,  Sects.  5570-5578.  For  a  discussion  of 
this  subject  see  J.  B.  Moore,  A  Digest  of  International,Law,  Vol.  I,  pp.  556-580. 


THE  GOVERNMENT  OF  TERRITORIES  577 

by  the  president  and  require  the  approval  of  two  thirds  of  the 
Senate  before  becoming  binding.  In  addition,  in  treaties  annex- 
ing territory,  the  action  of  the  House  in  making  the  appropriation 
called  for  is  generally  necessary. 

The  third  method  of  territorial  acquisition  is  by  joint  resolu-  Territory 
tion.     This   has   been  employed  twice.    In  the  case  of  Texas,  S^JJJSt 
when  the  annexation  treaty  failed  to  obtain  the  necessary  two-  resolution 
thirds  vote,  a  joint  resolution  was  passed,  which  required  but  a 
bare  majority  of  both  Houses.   The  same  method  was  employed 
in  the  case  of  Hawaii,  after  it  became  apparent  that  the  treaty 
would  not  obtain  the  necessary  majority.     If  territory  may  be 
annexed  by  the  passage  of  a  statute,  which  requires  but  a  majority 
vote,   there   is   no   reason   to   question   the   constitutionality  of 
annexation  by  a  joint  resolution  instead  of  a  treaty. 

THE  POWER  OF  THE  UNITED  STATE'S  TO  GOVERN  TERRITORY 

The  power  of  the  United  States  to  govern  territory  not  within  power  of 
the  boundaries  of  any  state  has  never  been  questioned.    This  states?** 


power  may  be  derived  from  three  different  sources  :  from  the 
express  power  given  to  Congress  to  make  rules  and  regulations  questioned 
respecting  the  territory  belonging  to  the  United  States,1  the 
implied  power  derived  from  the  right  to  acquire  territory,  and 
"the  power  implied  from  the  fact  that  the  states  admittedly 
not  having  the  power,  and  the  power  having  to  exist  some- 
where, it  must  rest  in  the  federal  government."2  Thus,  in 
1  8  10,  Marshall  held  concerning  the  territory  of  Orleans: 

The  power  of  governing  and  legislating  for  a  territory  is  the  inevita- 
ble consequence  of  the  right  to  acquire  and  to  hold  territory.  Could 
this  position  be  contested,  the  Constitution  of  the  United  States  declares 
that  "  Congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property  belong- 
ing to  the  United  States."  Accordingly,  we  find  Congress  possessing 
and  exercising  the  absolute  and  undisputed  power  of  governing  and 
legislating  for  the  territory  of  Orleans.8 

1  The  Constitution  of  the  United  States,  Article  IV,  Sect,  iii,  clause  2. 

2  W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States,  p.  351. 
8  Sere  v.  Pitot,  6  Cranch,  332,  336-337. 


578    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Territory  ac- 
quired as 
the  result  of 
military 
operations 


The  Consti- 
tution does 
not  apply  to 
territory 
held  by 
military 
occupation 


Military 

government 

in  acquired 

territory 

only 

temporary 


In  1828,  Marshall,  while  repeating  his  previous  reasoning, 
added  the  following  new  suggestion  : 

Perhaps  the  power  of  governing  a  territory  belonging  to  the  United 
States,  which  has  not,  by  becoming  a  state,  acquired  the  means  of  self- 
government,  may  result  necessarily  from  the  facts  that  it  is  not  within 
the  jurisdiction  of  any  particular  state,  and  is  within  the  power  and 
jurisdiction  of  the  United  States.1 

METHODS  OF  ACQUIRING  TERRITORY 

Territory  acquired  as  the  result  of  military  operations  is  for 
the  time  being  entirely  subject  to  the  president  as  commander 
in  chief  of  the  army.  The  status  of  such  territory  depends  not 
so  much  upon  the  Constitution  of  the  United  States  as  upon 
the  principles  of  international  law  and  the  rules  laid  down  and 
observed  for  the  occupation  of  enemy  territory.  The  president 
is  not  limited  by  the  Constitution  but  by  the  rules  of  war.  Thus 
the  court  said  in  1874  and  repeated  in  1900  : 

.  .  .  The  conquering  power  has  a  right  to  displace  the  preexisting 
authority,  and  to  assume  to  such  extent  as  it  may  deem  proper  the 
exercise  by  itself  of  all  the  powers  and  functions  of  government.  It 
may  appoint  all  the  necessary  officers  and  clothe  them  with  designated 
powers,  larger  or  smaller,  according  to  its  pleasure.  It  may  prescribe 
the  revenues  to  be  paid,  and  apply  them  to  its  own  use  or  otherwise. 
It  may  do  anything  necessary  to  strengthen  itself  and  weaken  the 
enemy.  There  is  no  limit  to  the  powers  that  may  be  exerted  in  such 
cases,  save  those  which  are  found  in  the  laws  and  usages  of  war.  .  .  .2 

This  arbitrary  power  which  may  be  utilized  during  military 
occupation  has  both  advantages  and  disadvantages.  It  enables 
the  president  and  the  commanding  general  on  the  spot  to  take 
at  once  such  steps  as  may  be  necessary,  unhampered  by  the 
need  of  obtaining  the  consent  of  any  other  body.  By  the  simple 
promulgation  of  an  order  the  general  can  amend  old  laws  or 
enact  new  ones.1  Especially  is  this  power  useful  in  making  the 
changes  necessary  for  the  transition  from  the  old  state  to  the 

1  American  Insurance  Co.  v.  Canter,  i  Peters,  511,  542. 

2  New  Orleans  v.  New  York  Mail  Steamship  Co.,  20  Wall.  387,  394 ;  Dooley  v. 
United  States,  182  U.S.  222,  231. 


THE  GOVERNMENT  OF  TERRITORIES  579 

new  government.  The  disadvantages  are  also  obvious.  The  sys- 
tem is  autocratic  and  absolute.  Almost  any  people  resent  such 
absolute  control,  no  matter  how  excellent,  and  prefer  a  share 
in  directing  their  own  affairs,  even  to  their  own  detriment.  Even 
when  such  control  is  acquiesced  in,  it  has  a  bad  moral  effect 
and  is  a  poor  preparation  for  self-government,  which  seems  to 
be  the  ideal  of  the  American  colonial  policy.1  Nevertheless, 
such  military  government  has  been  'used  to  great  advantage  in 
Porto  Rico  and  the  Philippines. 

The  military  government  established  by  the  president  auto-  Military 
matically  ceases  upon  the  conclusion  of  the  treaty  of  peace. 


The    president    cannot   exercise   the   war    powers    in   time    of  the  estab- 

lishment of 
peace.    The  government  of  the  newly  acquired  territory  ceases  peace  and 

,  ,  ,  .,.  -I,  .  ,  ,    .      the  terri- 

to  depend  upon  the   military  power  of  the  president  and  is  tory 


dependent  upon  Congress,  although  Congress  may  either  through 
nonaction  or  express  action  allow  the  already  established  govern-  on  congress 
nient  to  continue.    Thus,   for  example,  .before  the  treaty  the 
newly  acquired  territory  is  foreign  territory  and  goods  imported 
into  it  from  the  United  States  may  be  taxed  according  to  the 
discretion  of  the  president  and  the  military  commander.    After 
the  treaty,  goods  imported  into  the  territory  are  not  subject  to  the 
military  duties  but  must  be  admitted  free  until  Congress  acts.2 
This  is  true,  although  Congress  through  nonaction  may  compel  congress 
the  president  to  continue  the  government  he  has  established  as  ^ygovern- 
commander  in  chief  ;  but  there  is  this  difference  :  the  president,  ™eent  in 
acting  as  commander  in  chief,  cannot  be  questioned  by  Congress  president 
nor  may  his  decrees  be  altered.    When  peace  is  declared  he  acts 
not  as  commander  in  chief  but  as  general  executive,  to  carry 
out  the  Constitution  and  the  acts  of  Congress.    This  is  clearly 
seen   by   examining   the   action   toward   the    Philippines.    The  [illustrated 
American   forces   occupied    Manila  on  August  13,   1898,  and  Vari0uS 
from  that  date  the  president  and  his   commanders   constituted  g^nment 
the  sole  governing  authority.    This  power,  resting  upon  the  war  JJ^J  incg-, 
power  of  the  president,  technically  came  to  an  end  with  the 
ratification  of  the  treaty  with  Spain,  February  6,  1899,  but  Con- 
gress did  not  act  until  1901.     In  the  meantime  the  president 

1  See  W.  F.  Willoughby,  Territories  and  Dependencies  of  the  United  States, 
pp.  23-27.  2  Dooley  v.  United  States,  182-  U.  S.  222. 


580    THE  GOVERNMENT  OF  THE  UNITED  STATES 

continued  what  was  practically  military  government  in  the 
absence  of  congressional  action.  In  1901  Congress  voted  that 
"all  military,  civil,  and  judicial  powers  necessary  to  govern 
the  Philippine  Islands  shall,  until  otherwise  provided  by  Con- 
gress, be  vested  in  such  person  or  persons  as  the  President 
of  the  United  States  shall  direct.  ..."  There  was  no  differ- 
ence in  the  course  pursued  by  the  president,  but  his  authori- 
zation was  now  obtained  expressly  from  an  act  of  Congress. 
In  1902  an  act  was  passed  establishing  civil  government  in  the 
Philippines,  and  the  presidential  government  whether  by  com- 
mander in  chief  or  general  executive  was  superseded  by  con-| 
gressional  government. 

Ever  since  the  establishment  of  the  government  Congress  has 
exercised  its  authority  to  govern  the  territories.  Even  before  = 
the  adoption  of  the  Constitution  the  Congress  of  the  Confedera- 
tion passed  the  famous  Northwest  Ordinance  for  the  government 
of  the  territory  north  of  the  Ohio  River,  which  since  that  time 
has  served  as  the  basis  of  the  subsequent  act  for  the  govern- 
ment of  newly  acquired  territory.  There  has  been  almost  no 
question  of  the  power  of  Congress  to  do  this  and  few  questions 
concerning  the  actual  course  pursued  by  Congress.  Congress  has  ; 
full  power  and  may  vest  it  in  the  hands  of  a  single  officer,! 
as  was  done  in  the  case  of  the  Philippines  by  allowing  the 
president  to  establish  whatever  form  of  government  he  thought 
necessary ;  or  it  may  give  to  the  people  of  the  territory  a  voice 
in  their  own  government,  or  may  establish  almost  complete  self- 
government  under  the  supervision  of  the  executive  and  the  courts. 
The  extent  of  the  power  of  Congress  in  this  field  was  well-stated 
by  Chief  Justice  Waite  in  1879  when  he  s^aid : 

All  territory  within  the  jurisdiction  of  the  United  States,  not  included 
in  any  state,  must  necessarily  be  governed  by  or  under  the  authority  of 
Congress.  The  territories  are  but  political  subdivisions  of  the  outlying 
dominion  of  the  United  States.  .  .  .  The  organic  law  of  a  territory  takes 
the  place  of  a  constitution  as  the  fundamental  law  of  the  local  govern- 
ment. It  is  obligatory  on  and  binds  the  territorial  authorities ;  but 
Congress  is  supreme.  .  .  .  Congress  may  not  only  abrogate  laws  of  the 
territorial  legislatures,  but  it  may  itself  legislate  directly  for  the  local 
government.  It  may  make  a  void  act  of  the  territorial  legislature  valid, 


r\ 

THE  GOVERNMENT  OF  TERRITORIES  581 

and  a  valid  act  void.  In  other  words,  it  has  full  and  complete  legislative 
authority  over  the  people  of  the  territories  and  all  the  departments  of 
the  territorial  governments.1 

From  the  time  of  Marshall's  decision  in  i8282  the  govern- 
ments of  the  territories  have  been  held  to  be  based  upon  con- 
gressional action.  Thus,  in  speaking  of  the  courts  established 
in  Florida,  where  the  judges  were  appointed  for  four-year  terms, 
he  said : 

These  courts  then,  are  not  constitutional  courts  in  which  the  judicial 
power  conferred  by  the  Constitution  on  the  general  government  can  be 
deposited.  They  are  incapable  of  receiving  it.  They  are  legislative 
courts,  created  in  virtue  of  the  general  right,  of  sovereignty  which  exists 
in  the  government,  or  in  virtue  of  that  clause  which  enables  Congress 
to  make  all  needful  rules  and  regulations,  respecting  the  territory  belong- 
ing to  the  United  States.  The  jurisdiction  with  which  they  are  invested 
is  not  a  part  of  that  judicial  power  which  is  defined  in  the  third  article 
of  the  Constitution,  but  was  conferred  by  Congress,  in  the  execution  of 
those  general  powers  which  that  body  possesses  over  the  territories  of 
the  United  States.8 

LIMITATIONS  ON  THE  POWER  TO  GOVERN  TERRITORIES 

-  Although  it  has  not  been  questioned  that  Congress  has  power  DOCS  the 
to  establish  governments  for  the  territories  and  to  legislate  for 
them,  the  question  has  been  frequently  raised  as  to  the  limits  of 
this  congressional  power.  The  problem  has  furnished  a  most 
interesting  and  complex  chapter  in  the  constitutional  history  of 
the  United  States.  Briefly  the  question  may  be  stated  as  follows  : 
Do  all  the  provisions  of  the  Constitution  apply  to  the  territories  ? 
that  is,  Is  Congress  bound  in  legislating  for  the  territories  by  the 
same  limitations  as  it  is  when  legislating  for  the  states  ?  Or,  to 
use  the  picturesque  language  adopted  in  1898,  Does  "the  Con- 
stitution follow  the  flag"  ?  In  answering  this  question  it  must 
be  remembered  that  until  1867  the  United  States  had  acquired 
no  territory  which  it  might  not  properly  hope  to  raise  to  the 
rank  of  states.  After  1867  Alaska  presented  a  problem  which 

1  First  National  Bank  of  Brunswick  v.  Yankton,  101  U.  S.  129,  133. 

2  American  Insurance  Co.  v.  Canter,  I  Peters,  511,  542. 
8  i  Peters,  511,  546. 


582    THE  GOVERNMENT  OF  THE  UNITED  STATES 

for  years  was  overlooked  because  of  the  scanty  population.  But 
after  the  treaty  with  Spain  the  Philippine  Islands  and  Porto 
Rico,  with  their  large  populations  and  civilizations  radically  dif- 
ferent from  those  of  the  United  States,  required  a  most  search- 
ing analysis  and  a  restatement  of  the  constitutional  authority  and 
limitations  of  Congress  to  govern  territories. 

Until  well  into  the  nineteenth  century  these  limitations  had 
not  been  seriously  considered,  but  with  the  desire  for  the  exten- 
sion of  slave  territory  the  question  became  acute.  Could  Con- 
gress prohibit  slavery  in  the  territories  ?  Congress  had  done  so 
in  the  famous  Northwest  Ordinance  of  1787  and  in  the  Missouri 
Compromise  of  1820,  but  in  1857  Chief  Justice  Taney  evidently 
held  that  such  action  was  beyond  the  power  of  Congress  because 
it  would  result  in  depriving  the  slave  owner  of  his  property 
without  due  process  of  law.  His  reasoning  was  based  upon  the 
fact  that  all  the  clauses  of  the  Constitution  limiting  the  power  of 
Congress  apply  to  the  acts  of  Congress  concerning  the  territories, 
and  is  as  follows  : 

But  the  power  of  Congress  over  the  person  or  property  of  a  citizen 
can  never  be  a  mere  discretionary  power  under  our  Constitution  and 
form  of  government.  The  power  of  the  government  and  the  rights 
and  privileges  of  the  citizens  are  regulated  and  plainly  defined  by  the 
Constitution  itself.  And  when  the  territory  becomes  a  part  of  the  United 
States,  the  federal  government  enters  into  possession  in  the  character 
impressed  upon  it  by  those  who  created  it.  It  enters  upon  it  with  the 
powers  over  the  citizen  strictly  defined  and  limited  by  the  Constitution, 
from  which  it  derives  its  own  existence,  and  by  virtue  of  which  alone  it 
continues  to  exist  and  act  as  a  government  and  sovereignty.  It  has  no 
power  of  any  kind  beyond  it ;  and  it  cannot,  when  it  enters  a  territory 
of  the  United  States,  put  off  its  character  and  assume  discretionary  or 
despotic  powers  which  the  Constitution  has  denied  to  it.  It  cannot  cre- 
ate for  itself  a  new  character  separated  from  the  citizens  of  the  United 
States,  and  the  duties  it  owes  them  under  the  provisions  of  the  Constitu- 
tion. The  territory  being  a  part  of  the  United  States,  the  government 
and  the  citizen  both  enter  it  under  the  authority  of  the  Constitution, 
with  their  respective  rights  defined  and  marked  out ;  and  the  federal 
government  can  exercise  no  power  over  his  person  or  property,  beyond 
what  that  instrument  confers,  nor  lawfully  deny  any  right  which  it 
has  reserved.1 

1  Dred  Scott  v.  Sandford,  19  How.  393,  449,  450. 


THE  GOVERNMENT  OF  TERRITORIES  583 

The  Civil  War  and  the  Thirteenth  Amendment  settled  the 
question  as  far  as  slavery  was  concerned  and  by  constitutional 
amendment  reversed  the  dictum  of  Taney.  But  the  constitutional 
question  appeared  in  other  forms.  Thus,  in  1  897  the  court  held 
that  the  Seventh  Amendment  of  the  Constitution  providing  for 
jury  trial  required  that  the  Verdict  of  the  jury  should  be  unanimous, 
and  that  the  act  of  Congress  could  not  impart  the  power  to 
change  this  constitutional  rule  as  the  territorial  legislature  of 
Utah  had  attempted  to  do.1 

All  these  difficulties,  however,  sank  into  insignificance  before  Problems 
the  complexities  presented  by  the  acquisition  of  the  Philippines  bytheted 
and  Porto  Rico  and  Hawaii.  The  problems  first  arose  in  con-  ac(iuisition 

r  of  the 

nection  with  the  enforcement  of  revenue  legislation.    If  all  the  Philippines 
provisions  and  limitations  of  the  Constitution  applied  to  these 
newly  acquired  territories,  it  would  be  impossible  to  levy  duties 
upon  the  imports  from  these  islands  to  the  United  States,  and 
likewise  it  would  be  impossible  for  the  territorial  governments 
to  lay  duties  different  from  those  levied  upon  imports  to  the 
United  States  and  none  upon  goods  exported  from  the  United 
States  to  those  islands.    These  questions  came  before  the  court 
in  a  series  of  cases  popularly  known  as  the  "  Insular  Cases,"  The 
of  which  the  most  important  is  Downes  v.  Bidwell,  where  was 
evolved  a  theory  quite  different  from  any  before  applied  by  the 
court.     Five  justices  agreed  in  holding  that,  by  the  treaty  of  The  islands 
cession  from  Spain,  Porto  Rico  came  under  the  sovereignty  of  of°thePai 
the  United  States  as  far  as  other  nations  were  concerned,  but  states 
denied  that  it  became  a  part  of  the  United  States  as  far  as  the  a«hough 

1  ^        f  under  its 

Constitution  was  concerned.    Four  of  the  five  justices  who  made  sovereignty 
up  the  majority  held  that  while  the  treaty-making  power  was 
competent  to  annex  territories,  it  was  not  competent  to  incor- 
porate territories   so  annexed  into   the   Union.    This  required  Dominion 
some  action  either  explicit  or  implied.     Thus  the  dominion  of  united 
the  United  States  consisted  of  (i)  the  states,  (2)  the  territories 


which  had  been  incorporated  into  the  Union  and  to  which  all  (*)  incor- 

porated 

the  provisions  of  the  Constitution  applied,  (3)  territories  which  territories, 
were  not  yet  incorporated,  to  which  not  all  the  provisions  of  the  corporated 
Constitution  were  applicable.  The  fifth  justice,  who  sided  with  territories 

1  Springville  City  v.  Thomas,  166  U.  S.  707. 


584    THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  Consti- 
tution as 
far  as 
applicable 
extends 
to  the 
territories 


The  Con- 
stitution 
contains 
fundamental 
principles 
which  are 
everywhere 
applicable 
and  regula- 
tions not 
everywhere 
applicable 


the   majority,   made  no   distinction  between    incorporated   and 
unincorporated  territories. 

Next,  by  the  following  reasoning  the  court  proceeded  to  divide 
the  Constitution  into  two  parts,  the  formal  and  fundamental : 

Every  function  of  government  being  thus  derived  from  the  Con- 
stitution, it  follows  that  that  instrument  is  everywhere  and  at  all  times 
potential  in  so  far  as  its  provisions  are  applicable.  .  .  .  Hence  it  is  than 
wherever  a  power  is  given  by  the  Constitution  and  there  is  a  limitation 
imposed  upon  the  authority,  such  restriction  operates  upon  and  con-j 
fines  every  action  on  the  subject  within  its  constitutional  limits.  .  .  .  As., 
Congress  in  governing  the  territories  is  subject  to  the  Constitution,  it' 
results  that  all  the  limitations  of  the  Constitution  which  are  applicable] 
to  Congress  in  exercising  this  authority  necessarily  limit  its  power  on] 
this  subject.  It  follows,  also,  that  every  portion  of  the  Constitution' 
which  is  applicable  to  the  territories  is  also  controlling  therein.  .  .  .] 
From  these  conceded  propositions  it  follows  that  Congress  in  legislat-j 
ing  for  Porto  Rico  was  only  empowered  to  act  within  the  Constitution) 
and  subject  to  its  applicable  limitations,  and  that  every  provision  of] 
the  Constitution  which  applied  to  a  country  situated  as  was  that  island,  • 
was  potential  in  Porto  Rico. 

And  the  determination  of  what  particular  provision  of  the  Constitu- 
tion is  applicable,  generally  speaking,  in  all  cases,  involves  an  inquiry] 
into  the  situation  of  the  territory  and  its  relations  to  the  United  States.  . . .] 
Undoubtedly,  there  are  general  prohibitions  in  the  Constitution  in  favor] 
of  the  liberty  and  property  of  the  citizen,  which  are  not  mere  regular 
tions  as  to  the  form  and  manner  in  which  a  .conceded  power  may  be] 
exercised,  but  which  are  an  absolute  denial  of  all  authority  under  any! 
circumstances  or  conditions  to  do  particular  acts.  In  the  nature  of' 
things,  limitations  of  this  character  cannot  be  under  any  circumstances 
transcended,  because  of  the  complete  absence  of  power.1 

Thus  the  court,  without  specifying  what  are  the  fundamental ; 
limitations  upon  the  liberty  and  property  of  the  citizens,  holds 
that  these  apply  to  the   states,  to  incorporated  territories,  and 
unincorporated   territories   alike.    What    they  are   and  whether 
they  are  the  same  for  all  unincorporated  territories  the  court  will 
decide  in  each  particular  case  as  it  comes  up.    Other  parts  off 
the  Constitution,  "which  are  in  the  nature  of  "  mere  regulations 
as  to  the  form  and  manner  in  which  a  conceded  power  may  be 
1  182  U.  S.  244,  289,  291,  293,  294. 


THE  GOVERNMENT  OF  TERRITORIES  585 

exercised,"  apply  only  to  states  and  incorporated  territories.    To  Prohibition 
take  two  illustrations  :  The  Thirteenth  Amendment,  which  pro-  fLSenta 
hibits  slavery  within  the  United  States  "  or  any  place  subject  to  limitation 
their  jurisdiction,"  is  a  fundamental  limitation  and  applicable  to 
all  classes  of  territory.    But  the  phrase  that  "  all  duties,  imposts,  uniformity 
and  excises  shall  be  uniform  throughout  the  United  States"  is 
a  "  mere  regulation,"  limiting  the  taxing  power,  and  need  not  be 
applied  to  unincorporated  territories. 

This  reasoning,  although  arousing  considerable  criticism  Effect  of  this 
among  constitutional  lawyers,  has  proved  thus  far  a  satisfactory  d 
solution  of  the  difficulties  of  the  problem  presented  by  the  policy 
of  expansion  and  imperialism,  which  received  its  popular  sanction 
by  the  presidential  election  of  IQOO.1  It  is  an  excellent  example 
of  the  power  of  the  court  to  interpret  the  rigid  written  Constitu- 
tion of  the  United  States  and  to  adapt  it  to  the  changing  devel- 
opment of  the  country.  It  has  enabled  Congress  to  carry  out  the 
policy  desired  by  the  electorate  and  to  legislate  for  the  particular 
needs  of  each  territory,  and  has  made  it  possible  to  establish 
-governments  for  peoples  not  yet  ready  for  the  privileges 
'guaranteed  to  the  citizens  of  the  United  States. 

Some  further   instances  of  the    application  of  this  principle  Neither 
may  be  given.    In  the  case  of  Hawaii  it  has  been  held  that 
neither  indictment  by  a  grand  jury  nor  trial  by  a  petit  jury  were 


"  fundamental  rights  "  and  thus,  since  the  courts  held  that  Hawaii  a  Petit 

TT          ..    juryfunda- 

was  not  an  incorporated  territory,  the  usual  procedure  in  Hawaii  mental  in 


was  legal.2  But  it  has  been  held  that  Alaska  was  an  incorporated 
territory  and  therefore  the  inhabitants  were  entitled  to  trial  by  territories 
jury.3  In  Binns  v.  the  United  States?  it  was  held  that  although 
Alaska  was  an  incorporated  territory,  the  Congress  of  the 
United  States  might  act  as  the  local  legislature  for  it,  and,  as 
such,  was  not  bound  by  the  rule  that  all  taxes  should  be  uniform 
throughout  the  United  States,  and  thus  could  levy  a  license  fee 
applicable  to  Alaska  alone. 

1  A  well-known  American  humorist  has  thus  epitomized  the  result  of  the 
decision    and  election  :    "  The  Constitution  may  not   follow  the  flag  but  the 
Supreme  Court  follows  the  election  returns." 

2  Hawaii  v.  Mankichi,  190  U.  S.  197. 

8  Rasmussen  v.  United  States,  197  U.S.  516. 
4  194  U.  S.  486. 


586    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Territories 
classified  as 
fully  organ- 
ized, par- 
tially organ- 
ized, or 
unorganized 


The  organ- 
ized terri- 
tories 


[The  North- 
west Ordi- 
nance] 


TERRITORIAL  GOVERNMENTS 

While  from  a  constitutional  point  of  view  the  territories  may 
be  classified  as  incorporated  or  unincorporated,  from  the  political 
point  of  view  they  must  be  classified  as  fully  organized,  partially 
organized,  or  unorganized.  These  classifications,  however,  by  no 
means  coincide,  for,  although  Hawaii  from  the  point  of  view 
of  the  Constitution  is  an  unincorporated  territory,  it  possesses 
a  fully  organized  territorial  government,  while  Alaska  before 
1912  was  an  unorganized  territory  yet  in  1898  was  held  by 
the  court  to  be  an  incorporated  territory. 

The  model  for  the  government  of  organized  territories  is  to 
be  found  in  the  famous  "  Ordinance  for  the  Government  of  the 
Territory  of  the  United  States  Northwest  of  the  Ohio  River."  1 
By  this  two  schemes  of  government  were  provided :  one  to  go 
into  effect  immediately  and  the  Other  when  certain  conditions 
were  fulfilled.  The  first  provided  that  the  powers  of  govern- 
ment were  to  be  vested  in  a  governor,  a  secretary,  and  a  court 
to  consist  of  three  judges,  all  to  be  appointed  by  Congress.  As 
soon  as  there  were  five  thousand  free  male  inhabitants  of  full 
age  in  the  district  the  second  form  of  government  was  to  go 
into  effect.  This  plan  differed  from  the  first  chiefly  in  that  it 
provided  for  a  legislature.  A  house  of  representatives  was  to 
be  elected  by  the  qualified  electors,  consisting  of  one  representa- 
tive for  every  five  hundred  male  inhabitants,  until  the  number 
reached  twenty-five.  A  freehold  of  fifty  acres  was  a  qualifica- 
tion for  the  franchise,  which  was  restricted  to  persons  who 
had  been  citizens  of  one  of  the  states  and  resident  in  the 
district,  or  to  those  who  had  been  resident  in  the  district  for  at 
least  two  years.  This  body  was  to  nominate  ten  persons  resid- 
ing in  the  district  and  each  in  possession  of  a  freehold  of  five 
hundred  acres,  from  which  number  the  president  should  appoint 
five  to  act  as  the  upper  house.  To  these  two  houses  and  the 
governor  was  given  all  legislative  power.  The  governor,  more- 
over, was  given  an  absolute  veto,  and  power  to  convene,  prorogue, 
or  dissolve  the  legislature.  It  was  also  provided  that  the  houses 

1  F.  N.  Thorpe,  American  Charters,  Constitutions,  and  Organic  Laws,  Vol. 
II,  p.  957. 


THE  GOVERNMENT  OF  TERRITORIES  587 

in  joint  assembly  should  choose  a  delegate  to  Congress,  who 
should  have  a  seat  with  the  right  to  debate  but  not  to  vote.  The 
governments  established  for  all  the  territories  on  the  mainland 
have  followed  more  or  less  closely  this  statute.  There  have 
been  many  variations  to  suit  the  particular  needs  of  the  indi- 
vidual territories,  particularly  in  the  days  of  their  early  settlement ; 
but  in  the  later  legislation  Congress  has  more  and  more 
frequently  enacted  general  laws  applicable  to  all  territories 
having  the  same  status.1 

Although  at  one  time  or  another  all  the  states  outside  of  the 
original  thirteen,  except  Vermont,  Maine,  and  Texas,  have  pos- 
sessed a  territorial  form  of  government,  there  are  now  only  two 
fully  organized  territories,  Alaska,  which  is  held  by  the  court 
to  be  an  incorporated  territory,  and  Hawaii,  which  is  regarded 
as  unincorporated. 

The  government  of  Hawaii 2  depends  upon  the  organic  act  of  Hawaii 
1900.  By  it  the  Constitution  and  laws  of  the  United  States 
applicable  to  the  local  conditions  were  extended  to  Hawaii.  As 
has  been  seen,  these  do  not  include  those  provisions  of  the 
Constitution  relative  to  jury  trial.  Citizenship,  both  in  the  United 
States  and  in  the  Territory  of  Hawaii,  was  conferred  upon  all 
pe^gons  who  were  citizens  of  the  Republic  of  Hawaii-  on  August 
12,  1898,  or  who  might  reside  there  one  year.  The  organic 
act  differs  from  the  usual  type  found  in  other  territories  in 
that,  instead  of  providing  merely  for  a  governor  and  secretary, 
the  whole  complement  of  administrative  officers  is  provided  for. 
The  governor  and  secretary  are  appointed  by  the  president 
with  the  consent  of  the  Senate,  while  the  other  territorial 
officers  are  appointed  and  removable  by  the  territorial  governor 
with  the  assent  of  their  territorial  senate.  The  legislature  con- 
sists of  two  houses  ;  the  upper  composed  of  fifteen  members 
holding  office  for  four  years  and  seven  or  eight  retiring  every 
two  years.  The  house  of  representatives  consists  of  thirty 
members  elected  every  second  year.  Owing  to  the  mixed 
character  of  the  population  great  care  is  taken  in  the  organic 

1  W.  F.  Willoughby,  Territories  and  Dependencies  of  the   United  States, 

P-  53- 

2  Ibid.  pp.  60-70. 


588    THE  GOVERNMENT  OF  THE  UNITED  STATES 

act  to  determine  the  franchise.  A  voter  must  fulfill  the  follow- 
ing conditions:  (i)  He  must  be  a  male  citizen  of  the  United 
States;  (2)  must  have  resided  not  less  than  one  year  in  the 
territory,  and  not  less  than  three  months  in  the  district  in  which 
he  is  registered  ;  (3)  must  Tiave  attained  the  age  of  twenty-one ; 
(4)  must  have  properly  registered ;  (5)  must  be  able  to  speak, 
read,  and  write  either  the  English  or  Hawaiian  language.  This 
last  provision  is  of  especial  importance  in  view  of  the  large 
number  of  Chinese  and  Japanese  in  the  island.  The  number  of 
native  Hawaiians  has  during  recent  years  been  decreasing,  while 
the  immigration  of  American  citizens  has  not  been  large.  The 
result  is  that  the  political  power  is  becoming  more  and  more 
concentrated  in  a  minority  of  Americans  and  other  English- 
speaking  persons'.1 

The  powers  of  the  assembly  are  the  same  as  are  usually 
granted  to  legislative  assemblies,  except  that  a  majority  not 
merely  of  those  present  but  of  the  membership  must  be  obtained 
to  pass  a  bill.  The  governor,  moreover,  is  given  not  merely 
the  general  veto  but  the  right  to  veto  specific  items  in  a  bill 
appropriating  money. 

Alaska  is  considered  a  fully  incorporated  territory,  and  all 
the  provisions  and  limitations  of  the  Constitution  are  applicable 
to  it.  In  1912  it  was  made  a  fully  organized  territory.  The  gov- 
ernor is  appointed  by  the  president ;  the  legislature,  consisting 
of  an  upper  house,  or  senate,  of  eight  members  holding  office  for 
four  years,  and  the  lower  house  of  sixteen  holding  office  for  two 
years,  meets  biennially.  All  laws  passed  by  the  assembly  are 
not  only  subject  to  the  veto  of  the  governor  but  must  be  sub- 
mitted to  Congress,  where,  if  disapproved,  they  become  null 
and  void.  The  legislature  may  not  remain  in  session  more  than 
sixty  days  unless  convened  for  an  extraordinary  session  of  not 
more  than  fifteen  days  by  the  governor,  when  requested  to  do 
so  by  the  president  or  in  time  of  public  danger.  All  legislative 
expenses  are  met  from  funds  appropriated  by  Congress.  Because 

1  W.  F.  Willoughby,  Territories  and  Dependencies  of  the  United  States, 
pp.  55-56.  The  population  of  Hawaii  in  1910  was  one  hundred  and  ninety-one 
thousand,  of  which  twenty-six  thousand  were  Hawaiian  and  over  one  hundred 
and  ten  thousand  Chinese  and  Japanese  who  are  ineligible  to  citizenship. 


THE  GOVERNMENT  OF  TERRITORIES  589 

of  the  vast  area  and  small  population,  Alaska,1  though  an 
organized  territory,  is  of  less  importance  from  a  governmental 
point  of  view  than  some  of  the  unorganized  territories.  At  the 
first  session  of  the  first  legislature  a  law  was  passed  granting 
suffrage  to  women. 

The  status  of   Porto  Rico  and   the  Philippines   is  peculiar,  status  of 
They    are  unincorporated    territories,    like    Hawaii,    and   until  ISuhe100 
1917,    like    Alaska,   they    did    not   have   the   normal    type   of  philiPPines 
territorial  government.    Unlike  Alaska,  however,  the  peoples  of 
those  islands  received  a  measure  of  self-government.    It  would 
be  proper  to   consider  them  as  not  fully  organized  territories 
until   1917,  -and  even  now  the  president  has  certain  powers  in 
them  which  are  not  usually  given  to  him  in  the  regular  type  of 
territorial  organization. 

Porto  Rico  was  governed  until  1900  under  the  military  portoRico 
authority.  In  May,  1900,  Congress  passed  the  organic  act 
which  gave  to  Porto  Rico  a  form  of  civil  government.  By  this 
act  the  citizens  of  Porto  Rico  occupied  a  peculiar  position. 
They  were  not  made  citizens  of  the  United  States  but  were 
considered  citizens  of  Porto  Rico  under  the  protection  of  the 
United  States,  and  were  not  held  to  be  aliens  under  the  provi- 
sions of  the  immigration  act  of  1891.2  The  governor  and  six 
executive  officers  were  appointed  by  the  president.  These  offi- 
cers not  only  had  administrative  duties  to  perform  but  together 
with  five  other  persons,  also  appointed  by  the  president,  consti- 
tuted the  upper  house  of  the  legislature.  These  five  persons 
must  be  native  inhabitants  of  the  island.  The  lower  house  con- 
sisted of  thirty-five  members  elected  biennially.  The  franchise 
was  given  to  male  citizens  of  Porto  Rico,  twenty-one  years  of 
age,  who  had  resided  in  the  island  for  one  year  and  in  the  dis- 
trict in  which  they  registered  for  six  months.  After  1906  no  new 
name  was  added  to  the  list  unless  its  owner  could  read  or  write.3 
Several  rather  interesting  peculiarities  are  to  be  observed  in 
this  act.  First,  practically  all  the  administrative  officers  were 

1  In  1917  the  population  was  estimated  at  64,873. 

2  Gonzales  v.  Williams,  192  U.S.  i. 

3  W.  F.  Willoughby,  Territories  and  Dependencies  of  the  United  States, 
pp.  96-97. 


590    THE  GOVERNMENT  OF  THE  UNITED  STATES 


By  act  of 
1917  Porto 
Rico  became 
a  fully  organ- 
ized territory 


The 
Philippines 


[Military 
government] 


[The  Philip- 
pine com- 
mission] 


appointed  by  the  president  instead  of  by  the  territorial  governor 
or  elected  by  the  legislature  ;  next,  these  officers  formed  a  majority 
of  the  upper  house,  thus  giving  to  the  president  the  power  to 
check  any  legislative  act.  In  1908  there  occurred  a  deadlock 
because  of  the  refusal  of  the  council  to  assent  to  certain  acts  of 
the  lower  house.  This  resulted  in  the  refusal  of  the  lower 
house  to  pass  the  budget,  and  when  this  condition  was  referred 
to  Congress  a  law  was  passed  providing  that  in  future,  should 
the  lower  house  refuse  to  pass  the  budget,  the  taxes  and 
appropriations  of  the  preceding  year  should  be  continued. 

On  February  20,  1917,  Congress  passed  an  amendment  to 
the  organic  act  by  which  the  residents  of  Porto  Rico  were 
admitted  collectively  to  American  citizenship  and  universal  male 
suffrage  was  established.  It  was  also  provided  that  the  upper 
house,  or  senate,  should  be  elected,  and  the  heads  of  the  execu- 
tive departments  should  be  appointed  by  the  territorial  governor 
instead  of  by  the  president.  This  is  practically  the  form  of  gov- 
ernment given  to  regularly  organized  territories,  and  Porto  Rico 
may  now  be  placed  in  that  category. 

The  Philippines  have  had  three  forms  of  government  vary- 
ing from  complete  military  government  to  a  type  similar  to 
that  provided  for  Porto  Rico,  which  closely  resembles  that  of 
continental  territories  of  the  United  States.  At  the  beginning 
of  the  American  occupation  large  numbers  of  the  natives 
revolted  against  American  rule,  and  until  1899  the  government 
was  entirely  in  the  hands  of  Admiral  Dewey  and  General  Otis. 
In  January,  1 899,  a  civilian  commission  was  appointed  to  act  in 
conjunction  with  the  military  power  to  investigate  conditions 
and  report  a  scheme  for  government.  In  March,  1900,  Presi- 
dent McKinley  appointed  W.  H.  Taft  head  of  a  commission  to 
continue  the  work  begun  by  the  military  officers  in  establishing 
a  form  of  civil  government,  and  in  1901  all  the  power  was 
transferred  from  the  military  government,  and  W.  H.  Taft 
became  civil  governor  of  the  Philippines.  Up  to  this  point  the 
entire  government  was  under  the  direction  of  the  president, 
first  under  his  power  as  commander  in  chief,  then  as  executive 
until  Congress  acted,  then  as  executive  under  the  resolution  of 
Congress  conferring  upon  him  the  power  to  act.  In  1902 


THE  GOVERNMENT  OF  TERRITORIES  59! 

Congress  passed  an  organic  act  providing  that  when  the  Islands 
were  pacified  and  a  census  taken,  a  legislative  assembly  should  be 
established.  In  1907  an  assembly  was  opened  by  Governor  Taft. 

This  form  of  government  consisted  of  a  governor  appointed   [The  organic 
by  the  president,  aided  by  a  commission  of  five  Americans  and  act 
four  Filipinos,  also  appointed  by  the  president.    This  commis- 
sion composed  the  upper  house  of  the  legislature.    The  house 
of  representatives  was   elected  according  to  a   restricted  fran- 
chise by  the  voters  of  those  islands  not  inhabited  by  Moros  or 
other  non-Christian  tribes. 

On  August  29,  1917,  President  Wilson  approved  an  organic  By  act  of  1917 
act  which  made  the  Philippines  virtually  an  organized  territory,  pines  became 
The  governor-general  is  appointed  by  the  president,  has  the 
usual  appointing  power,  submits  the  budget,  and  has  the  veto 
not  merely  of  general  bills  but  of  special  items  in  appropriation 
bills.  In  addition,  all  the  executive  functions  of  the  government 
are  directly  under  his  supervision  or  the  supervision  of  one  of 
the  departments  over  which  he  has  eontrol.  The  legislature  con- 
sists of  two  houses,  partly  elected  and  partly  appointed.  The 
senate  has  twenty-four  members  elected  for  six  years  from 
eleven  districts  and  two  members  appointed  by  the  governor 
from  the  non-Christian  districts.  In  the  lower  house  there  are 
eighty-one  members  elected  for  three  years  and  nine  appointed 
by  the  governor  from  the  non-Christian  districts.  The  legislature. 
has  the  usual  powers,  subject  to  the  qualified  veto  of  the  gov- 
ernor, but  may  not  pass  a  measure  over  his  veto  without  the 
approval  of  the  president  of  the  United  States. 

The  unorganized  districts  include  the  District  of  Columbia,  the  unorganized 

districts 

island  of  Guam,  the  Panama  Canal  Zone,  the  Samoan  Islands, 
and  the  newly  acquired  Virgin  Islands.  They  have  this  common 
feature,  they  are  governed  directly  by  federal  officers  without  the 
intervention  of  a  legislative  assembly.  The  Samoan  Islands  and 
Guam  are  governed  by  the  naval  officers  stationed  there  and  are  Guam 
entirely  dependent  upon  their  orders,  subject  of  course  to  the  in- 
structions and  directions  received  from  the  Navy  Department. 
The  Panama  Canal  Zone  is  controlled  by  a  governor,  appointed  gJJJ1 
by  the  president  for  four  years,  and  such  other  persons  as  the  presi- 
dent deems  necessary  to  administer  the  government,  appointed 


592    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Virgin 
Islands 


The  District 
of  Columbia 


Cuba 


Results  of  the 
policy  of 
territorial 
government 


to  serve  during  his  pleasure.  In  the  Virgin  Islands  the  military, 
civil,  and  judicial  power  is  vested  in  a  governor  and  such  other 
persons  as  the  president  may  appoint,  and  is  to  be  exercised 
according  to  the  directions  of  the  president. 

The  District  of  Columbia,  the  seat  of  the  federal  government, 
has  an  area  of  about  seventy  square  miles  and  contains  a  popula- 
tion of  33i,o69.1  After  several  experiments  in  forms  of  municipal 
government,  Congress  disfranchised  the  inhabitants  and  assumed 
complete  control.  The  executive  affairs  are  managed  by  a  com- 
mission of  two  civilians  and  one  army  engineer.  Not  merely 
does  this  commission  exercise  the  executive  power  but  it  has 
large  ordinance  power.  The  legislative  affairs  of  the  District 
are  conducted  by  Congress,  which  sets  aside  certain  days  for 
the  consideration  of  District  affairs. 

Cuba  is  not  a  part  of  the  territory  of  the  United  States  but  a 
semi-independent  state,  under  the  protection  of  the  United  States. 
By  treaty  the  United  States  has  the  right  to  intervene  when 
necessary  to  protect  life  and  property  or  to  establish  order. 

From  an  examination  of  the  various  forms  of  territorial  gov- 
ernment it  is  clear  that  while  the  United  States  has  always  had 
the  ideal  of  self-government,  it  has  not  hesitated  to  establish  the 
strictest  sort  of  autocratic  control  over  the  territories.  Even 
then,  as  in  the  case  of  Samoa,  the  aim  is  to  give  to  the  natives 
as  large  a  share  in  the  direction  of  their  own  affairs  as  possible. 
When  the  small  area  of  the  thirteen  original  states  is  contrasted 
with  the  present  territory  under  the  control  of  the  United  States 
it  will  be  recognized  at  once  that  the  United  States  has  been 
one  of  the  most  successful  nations  in  colonizing  and  controlling 
dependencies.  However,  only  since  1898  has  the  problem  of 
governing  large  masses  of  alien  populations  with  different  ideas 
and  civilizations  presented  itself.  Whether  the  United  States 
will  be  equally  successful  in  solving  this  problem  it  is  too  early 
to  judge.  But  in  dealing  with  its  insular  dependencies  it  is  to  be 
noted  that  it  has  attempted  to  apply  as  rapidly  as  possible  the 
same  principles  which  have  been  successful  in  dealing  with  its 
continental  possessions. 


1  Federal  Census  of  1910. 


APPENDIX 

CONSTITUTION   OF  THE  UNITED   STATES 
OF  AMERICA  [1787] 

[SUBMITTED  SEPTEMBER  17,  1787  ;  IN  FORCE  APRIL  30,  1789] 

We  the  people  of  the  United  States,  in  order  to  form  a  more  perfect  union, 
establish  justice,  insure  domestic  tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare,  and  secure  the  blessings  of  liberty  to  ourselves 
and  our  posterity,  do  ordain  and  establish  this  CONSTITUTION  for  the  United 
States  of  America. 

ARTICLE  I 

SECTION  i.  All  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,  which  shall  consist  of  a  Senate  and  House 
of  Representatives. 

SECTION  2.  [i.]  The  House  of  Representatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of  the  several  States,  and 
the  electors  in  each  State  shall  have  the  qualifications  requisite  for  electors 
of  the  most  numerous  branch  of  the  State  Legislature. 

[2.]  No  person  shall  be  a  Representative  who  shall  not  have  attained  to 
the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that  State  in 
which  he  shall  be  chosen. 

[3.]  Representatives  and  direct  taxes  shall  be  apportioned  among  the 
several  States  which  may  be  included  within  this  Union,  according  to  their 
respective  numbers,  (which  shall  be  determined  by  adding  to  the  whole 
number  of  free  persons,)  l  including  those  bound  to  service  for  a  term  of 
years,  and  excluding  Indians  not  taxed,  <three  fifths  of  all  other  persons).2 
The  actual  enumeration  shall  be  made  within  three  years  after  the  first 
meeting  of  the  Congress  of  the  United  States,  and  within  every  subsequent 
term  of  ten  years,  in  such  manner  as  they  shall  by  law  direct.  The  number 
of  Representatives  shall  not  exceed  one  for  every  thirty  thousand,  but  each 
State  shall  have  at  least  one  Representative ;  <and  until  such  enumeration 
shall  be  made,  the  State  of  New  Hampshire -shall  be  entitled  to  choose 
three,  Massachusetts  eight,  Rhode  Island  and  Providence  Plantations  one, 

1  Modified  by  Fourteenth  Amendment. 
'2  Superseded  by  Fourteenth  Amendment. 

593 


594    THE  GOVERNMENT  OF  THE  UNITED  STATES 

Connecticut  five,  New  York  six,  New  Jersey  four,  Pennsylvania  eight, 
Delaware  one,  Maryland  six,  Virginia  ten,  North  Carolina  five,  South 
Carolina  five,  and  Georgia  three).1 

[4.]  When  vacancies  happen  in  the  representation  from  any  State,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such  vacancies. 

[5.]  The  House  of  Representatives  shall  choose  their  Speaker  and  other 
officers;  and  shall  have  the  sole  power  of  impeachment. 

SECTION  3.  [i.]  The  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  <chosen  by  the  legislature  thereof,  for  six  years ; 
and  each  Senator  shall  have  one  vote).2 

[2.]  Immediately  after  they  shall  be  assembled  in  consequence  of  the  first 
election,  they  shall  be  divided  as  equally  as  may  be  into  three  classes.  The 
seats  of  the  Senators  of  the  first  class  shall  be  vacated  at  the  expiration  of 
the  second  year,  of  the  second  class  at  the  expiration  of  the  fourth  year,  and 
of  the  third  class  at  the  expiration  of  the  sixth  year,  so  that  one  third  may 
be  chosen  every  second  year ;  and  if  vacancies  happen  by  resignation,  or 
otherwise,  during  the  recess  of  the  legislature  of  any  State,  the  Executive 
thereof  may  make  temporary  appointments  until  the  next  meeting  of  the 
legislature,  which  shall  then  fill  such  vacancies. 

[3.]  No  person  shall  be  a  Senator  who  shall  not  have  attained  tc  the  age 
of  thirty  years,  and  been  nine  years  a  citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

[4.]  The  Vice  President  of  the  United  States  shall  be  president  of  the 
Senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

[5.]  The  Senate  shall  choose  their  other  officers,  and  also  a  president  pro 
tempore,  in  the  absence  of  the  Vice  President,  or  when  he  shall  exercise  the 
office  of  President  of  the  United  States. 

[6.]  The  Senate  shall  have  the  sole  power  to  try  all  impeachments.  When 
sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation.  When  the 
President  of  the  United  States  is  tried,  the  Chief  Justice  shall  preside :  and 
no  person  shall  be  convicted  without  the  concurrence  of  two  thirds  of  the 
members  present. 

[7.]  Judgment  in  cases  of  impeachment  shall  not  extend  further  than  to 
removal  from  office,  and  disqualification  to  hold  and  enjoy  any  office  of 
honor,  trust,  or  profit  under  the  United  States :  but  the  party  convicted  shall 
nevertheless  be  liable  and  subject  to  indictment,  trial,  judgment,  and  punish- 
ment, according  to  law. 

SECTION  4.  [i.]  The  times,  places,  and  manner  of  holding  elections  for 
Senators  and  Representatives  shall  be  prescribed  in  each  State  by  the  legis- 
lature thereof ;  but  the  Congress  may  at  any  time  by  law  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  Senators. 

1  Temporary  clause.         2  Superseded  by  Seventeenth  Amendment. 


APPENDIX  595 

[2.]  The  Congress  shall  assemble  at  least  once  in  every  year,  and  such 
meeting  shall  be  on  the  first  Monday  in  December,  unless  they  shall  by  law 
appoint  a  different  day. 

SECTION  5.  [i.]  Each  House  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members,  and  a  majority  of  each  shall  constitute 
a  quorum  to  do  business ;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance  of  absent  members,  in 
such  manner,  and  under  such  penalties,  as  each  House  may  provide. 

[2.]  Each  House  may  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior,  and,  with  the-  concurrence  of  two  thirds, 
expel  a  member. 

[3.]  Each  House  shall  keep  a  journal  of  its  proceedings,  and  from  time  to 
time  publish  the  same,  excepting  such  parts  as  may  in  their  judgment  require 
secrecy ;  and  the  yeas  and  nays  of  the  members  of  either  House  on  any 
question  shall,  at  the  desire  of  one  fifth  of  those  present,  be  entered  on 
the  journal. 

[4.]  Neither  House,  during  the  session  of  Congress,  shall,  without  the 
consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other 
place  than  that  in  which  the  two  Houses  shall  be  sitting. 

SECTION  6.  [i.]  The  Senators  and  Representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law,  and  paid  out  of  the 
treasury  of  the  United  States.  They  shall  in  all  cases,  except  treason,  felony, 
and  breach  of  the  peace,  be  privileged  from  arrest  during  their  attendance 
at  the  session  of  their  respective  Houses,  and  in  going  to  and  returning  from 
the  same ;  and  for  any  speech  or  debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  place. 

[2.]  No  Senator  or  Representative  shall,  during  the  time  for  which  he 
was  elected,  be  appointed  to  any  civil  office  under  the  authority  of  the  United 
States,  which  shall  have  been  created,  or  the  emoluments  whereof  shall  have 
been  increased,  during  such  time ;  and  no  person  holding  any  office  under 
the  United  States  shall  be  a  member  of  either  House  during  his  continuance 
in  office. 

SECTION  7.  [  i .]  All  bills  for  raising  revenue  shall  originate  in  the  House 
of  Representatives  ;  but  the  Senate  may  propose  or  concur  with  amendments 
as  on  other  bills. 

[2.]  Every  bill  which  shall  have  passed  the  House  of  Representatives  and 
the  Senate,  shall,  before  it  become  a  law,  be  presented  to  the  President  of 
the  United  States ;  if  he  approve  he  shall  sign  it,  but  if  not  he  shall  return 
it,  with  his  objections,  to  that  House  in  which  it  shall  have  originated,  who 
shall  enter  the  objections  at  large  on  their  journal,  and  proceed  to  reconsider 
it.  If  after  such  reconsideration  two  thirds  of  that  House  shall  agree  to  pass 
the  bill,  it  shall  be  sent,. together  with  the  objections,  to  the  other  House,  by 
which  it  shall  likewise  be  reconsidered,  and  if  approved  by  two  thirds  of  that 
House,  it  shall  become  a  law.  But  in  all  such  cases  the  votes  of  both  Houses 


596    THE  GOVERNMENT  OF  THE  UNITED  STATES 

shall  be  determined  by  yeas  and  nays,  and  the  names  of  the  persons  voting 
lor  and  against  the  bill  shall  be  entered  on  the  journal  of  each  House  respec- 
tively. If  any  bill  shall  not  be  returned  by  the  President  within  ten  days 
(Sundays  excepted)  after  it  shall  have  been  presented  to  him,  the  same  shall 
be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the  Congress  by  their 
adjournment  prevent  its  return,  in  which  case  it  shall  not  be  a  law. 

[3.]  Every  order,  resolution,  or  vote  to  which  the  concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary  (except  on  a  question 
of  adjournment)  shall  be  presented  to  the  President  of  the  United  States ; 
and  before  the  same  shall  take  effect,  shall  be  approved  by  him,  or  being 
disapproved  by  him,  shall  be  repassed  by  two  thirds  of  the  Senate  and  House 
of  Representatives,  according  to  the  rules  and  limitations  prescribed  in  the 
case  of  a  bill. 
^SECTION  8.  The  Congress  shall  have  power 

[i.J  To  lay  and  collect  taxeSj  duties,  imposts,  and  excises,  to  pay  the  debts 
and  provide  for  the  common  defence  and  general  welfare  of  the  United 
States;  but  all  duties,  imposts,  and  excises  shall  be  uniform  throughout  the 
United/states ; 

[2.1  To  borrow  money  on  the  credit  of  the  United  States ; 

[3.]  To  regulate  commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes ; 

[4.]  To  establish  an  uniform  rule  of  naturalization,  and  uniform  laws  on 
the  subject  of  bankruptcies  throughout  the  United  States ; 

[5.]  To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  and 
fix  the  standard  of  weights  and  measures ; 

[6.]  To  provide  for  the  punishment  of  counterfeiting  the  securities  'and 
current  coin  of  the  United  States ; 

[7.]   To  establish  post  offices  and  post  roads; 

[8.]  To  promote  the  progress  of  science  and  useful  arts,  by  securing  for 
limited  times  to  authors  and  inventors  the  exclusive  right  to  their  respective 
writings  and  discoveries ; 

[9.]   To  constitute  tribunals  inferior  to  the  Supreme  Court ; 
[10.]   To  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  law  of  nations ; 

[i  i.]   To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  and  water ; 

[12.]   To  raise  and  support  armies,  but  no  appropriation  of  money  to  that 
use  shall  be  for  a  longer  term  than  two  years ; 
[13.]   To  provide  and  maintain  a  navy ; 

[14.]   To  make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces ; 

[15.]   To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions ; 

[16.]    To  provide  for  organizing,  arming,  and  disciplining  the  militia,  and 
for  governing  such  part  of  them  as  may  be  employed  in  the  service  of  the 


APPENDIX  597 

United  States,  reserving  to  the  States  respectively  the  appointment  of  the 
officers,  and  the  authority  of  training  the  militia  according  to  the  discipline 
prescribed  by  Congress ; 

[17.]  To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over  such 
district  (not  exceeding  ten  miles  square)  as  may,  by  cession  of  particulay 
States,  and  the  acceptance  of  Congress,  become  the  seat  of  the  government 
of  the  United  States,  and  to  exercise  like  authority  over  all  places  purchased 
by  the- consent  of  the  legislature  of  the  State  in  which  the  same  shall  be, 
for  the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and  other  needful 
buildings ;  and 

[i8.J  To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or  in  any  department 
or  officer  thereof. 

SECTION  9.  [i.]  <The  migration  or  importation  of  such  persons  as  any 
of  the  States  now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited 
by  the  Congress  prior  to  the  year  one  thousand  eight  hundred  and  eight,  but 
a  tax  or  duty  may  be  imposed  on  such  importation,  not  exceeding  ten  dollars 
for  each  person.)  1 

[2.]  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  rebellion  or  invasion  the  public  safety  may  require  it. 
^  [3.]  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed.2 

[4.]  No  capitation,  or  other  direct,  tax  shall  be  laid,  unless  in  proportion 
to  the  census  or  enumeration  herein  before  directed  to  be  taken. 

[5.]   No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State. 

[6.]  No  preference  shall  be  given  by  any  regulation  of  commerce  or 
revenue  to  the  ports  of  one  State  over  those  of  another :  nor  shall  vessels 
bound  to,  or  from,  one  State,  be  obliged  to  enter,  clear,  or  pay  duties  in 
another. 

[7.]  No  money  shall  £>e  drawn  from  the  treasury,  but  in  consequence  of 
appropriations  made  by  law;  and  a  regular  statement  and  account  of  the 
receipts  and  expenditures  of  all  public  money  shall  be  published  from  time 
to  time. 

[8.]  No  title  of  nobility  shall'  be  granted  by  the  United  States :  and  no 
person  holding  any  office  of  profit  or  trust  under  them,  shall,  without  the 
consent  of  the  Congress,  accept  of  any  present,  emolument,  office,  or  title, 
of  any  kind  whatever,  from  any  king,  prince,  or  foreign  State.3 

SECTION  10.  [i.]  No  State  shall  enter  into  any  treaty,  alliance,  or  con- 
federation ;  grant  letters  of  marque  and  reprisal ;  coin  money ;  emit  bills 
of  credit ;  make  anything  but  gold^and  silver  coin  a  tender  in  payment  of 
debts;  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts,  or  grant  any  title  of  nobility. 

1  Temporary  provision. 

2  Extended  by  the  first  eight  amendments. 

8  Extended  by  Ninth  and  Tenth  Amendments. 


598    THE  GOVERNMENT  OF  THE  UNITED  STATES 


[2.]  No  State  shall,  without  the  consent  of  the  Congress,  lay  any  imposts- 
or  duties  on  imports  or  exports,  except  what  may  be  absolutely  necessary  ; 
for  executing  its  inspection  laws :  and  the  net  produce  of  all  duties  and  • 
imposts,  laid  by  any  State  on  imports  or  exports,  shall  be  for  the  use  of  i 
the  treasury  of  the  United  States ;  and  all  such  laws  shall  be  subject  to  the  j 
revision  and  control  of  the  Congress. 

[3.]   No  State  shall,  without  the  consent  of  Congress,  lay  any  duty  of  , 
tonnage,  keep  troops,  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State,  or  with  a  foreign  power,  or] 
engage  in  war,  unless  actually  invaded,  or  in  such  imminent  danger  as] 
will  not  admit  of  delay.1 

ARTICLE  II 

SECTION  i .   [  i .]  The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America.     He  shall  hold  his  office  during  the  term  of  four  i 
years,  and,  together  with  the  Vice  President,  chosen  for  the  same  term,  be ! 
elected,  as  follows : 

[2.]  Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof 
may  direct,  a  number  of  electors,  equal  to  the  whole  number  of  Senators 
and  Representatives  to  which  the  State  may  be  entitled  in  the  Congress  :  but 
no  Senator  or  Representative,  or  person  holding  an  office  of  trust  or  profit 
under  the  United  States,  shall  be  appointed  an  elector. 

<The  electors  shall  meet  in  their  respective  States,  and  vote  by  ballot  for 
two  persons,  of  whom  one  at  least  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves.  And  they  shall  make  a  list  of  all  the  persons  voted 
for,  and  of  the  number  of  votes  for  each ;  which  list  they  shall  sign  and  I 
certify,  and  transmit  sealed  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  president  of  the  Senate.  The  president  of  the  Senate 
shall,  in  the  presence  of  the  Senate  and  House  of  Representatives,  open  all 
the  certificates,  and  the  votes  shall  then  be  counted.  The  person  having  the 
greatest  number  of  votes  shall  be  the  President,  if  such  number  be  a  majority 
of  the  whole  number  of  electors  appointed ;  and  if  there  be  more  than  one 
who  have  such  majority,  and  have  an  equal  number  of  votes,  then  the  House 
of  Representatives  shall  immediately  choose  by  ballot  one  of  them  for  Presi- 
dent ;  and  if  no  person  have  a  majority,  then  from  the  five  highest  on  the  list 
the  said  House  shall  in  like  manner  choose  the  President.  But  in  choosing  the 
President,  the  votes  shall  be  taken  by  States,  the  representation  from  each 
State  having  one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a  member 
or  members  from  two  thirds  of  the  States,  and  a  majority  of  all  the  States 
shall  be  necessary  to  a  choice.  In  every  case,  after  the  choice  of  the  Presi- 
dent, the  person  having  the  greatest  number  of  votes  of  the  electors  shall  be 
the  Vice  President.  But  if  there  should  remain  two  or  more  who  have  equal 
votes,  the  Senate  shall  choose  from  them  by  ballot  the  Vice  President.)  " 

1  Extended  by  Thirteenth,  Fourteenth,  and  Fifteenth  Amendments. 

2  Superseded  by  Twelfth  Amendment. 


APPENDIX  599 

[3.]  The  Congress  may  determine  the  time  of  choosing  the  electors,  and 
the  day  on  which  they  shall  give  their  votes ;  which  day  shall  be  the  same 
throughout  the  United  States. 

[4.]  No  person  except  a  natural-born  citizen,  or  a  citizen  of  the  United 
States  at  the  time  of  the  adoption  of  this  Constitution,  shall  be  eligible  to 
the  office  of  President ;  neither  shall  any  person  be  eligible  to  that  office  who 
shall  not  have  attained  to  the  age  of  thirty-five  years,  and  been  fourteen 
years  a  resident  within  the  United  States. 

[5.]  In  case  of  the  removal  of  the  President  from  office^or  of  his  death, 
resignation,  or  inability  to  discharge  the  powers  and  duties  of  the  said  office, 
the  same  shall  devolve  on  the  Vice  President,  and  the  Congress  may  by  law 
provide  for  the  case  of  removal,  death,  resignation,  or  inability,  both  of 
the  President  and  Vice  President,  declaring  what  officer  shall  then  act  as 
President,  and  such  officer  shall  act  accordingly,  until  the  disability  be 
removed,  or  a  President  shall  be  elected. 

[6.]  The  President  shall,  at  stated  times,  receive  for  his  services  a  com- 
pensation, which  shall  neither  be  increased  nor  diminished  during  the  period 
for  which  he  shall  have  been  elected,  and  he  shall  not-  receive  within  that 
period  any  other  emolument  from  the  United  States,  or  any  of  them. 

[7.]  Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the  follow- 
ing oath  or  affirmation  :  "  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  office  of  President  of  the  United  States,  and  will,  to  the  best  of  my 
ability,  preserve,  protect,  and  defend  the  Constitution  of  the  United  States." 

SECTION  2.  [i.]  The  President  shall  be  commander  in  chief  of  the  army 
and  navv  of  the  UnitedJStates,  and  of  the  militia_ofjthe _seyeralj5tates,  when 
called  into  the  actual  service  of  the  United  States ;  he  may  require  the  opin- 
ion, in  writing,  of  the  principal  officer  in  each  of  the  executive  departments, 
upon  any  subject  relating  to  the  duties  of  their  respective  offices,  and  he 
shall  have  power  to  grant  reprieves  and  pardons  for  offences  against  the 
United  States,  except  in  cases  of  impeachment^,^,, 

[2.]  He  shall  have  power,  by  and  with  the  advice  and  consent  of  the 
Senate,Jo_make  treaties,  provided  ^o_jhirds^  ot  the  Senators  present  concur ; 
and  he  shall  nominate,  and  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  appoint  ambassadors,  other  public  ministers  and  consuls,  judges  of  the 
Supreme  Court,  and  all  other  officers  of  the  United  States,  whose  appoint- 
ments are  "not  herein  otherwise  provided  for,  and  which  shall  be  established 
by  law :  but  the  Congress  may  by  law  vest  the  appointment  of  such  inferior 
officers,  as  they  think  proper,  in  the  PresidenJ^akme,  in  the  courts_of  law^ 
or  in  the  heads  of^degartments. 

[3.]  The  President  shall  have  power  to  fill  up  all  vacancies  that  may 
happen  during  the  recess  of  the  Senate,  by  granting  commissions  which  shall 
expire  at  the  end  of  their  next  session. 

SECTION  3.  He  shaliirom  time  to  time  gJY£-lo  the  Congress  information 
'of  the^state  of  the  Union,  and  recommendjojheir  consideration  such  meas- 
ures aslie  shall  judge  necessary  and  expedient ;  he  may,  on  extraordinary 


600    THE  GOVERNMENT  OF  THE  UNITED  STATES 

occasions,  convene  both  Houses,  or  either  of  them,  and  in  case  of  disagree- 
ment between  them,  with  respect  to  the  time  of  adjournment,  he  may  adjourn 
them  to  such  time  as  he  shall  think  proper;  he  shall  receive  ambassadors 
an.d  other  public  ministers;  he  shall  take  care  that  the  laws  be  faithfully 
executed,  and  shall  commission  'all  the  officers  of  the  United  States. 

SECTION  4.  The  President,  Vice  President,  and  all  civil  officers  of  the 
United  States,  shall  be  removed  from  office  on  impeachment  for,  and  con- 
viction of,  treason,  bribery,  or  other  high  crimes  and  misdemeanors. 


ARTICLE  III 

SECTION  i.  The  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  courts  as  the  Congress  may  from  time 
to  time  ordain  and  establish.  The  judges,  both  of  the  Supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and  shall,  at  stated  times, 
receive  for  their  services  a  compensation,  which  shall  not  be  diminished 
during  their  continuance  in  office. 

SECTION  2.  [i.]  The  judicial  pqw^ii-^hajl^exteridtp  all  cases,  in  law 
and  equity,  arising  under  this  Constitution,  the  laws  of"  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority ;  —  to  all 
cases  affecting  ambassadors,  other  public  ministers,  and  consuls;  —  to  all 
'  cases  of  admiralty  and  maritime  jurisdiction ;  —  to  controversies  to  which 
the  United  States  shall  be  a  party;  —  to  controversies  between  two  or  more 
States ;  (between  a  State  and  citizens  of  another  State  ;>  1  —  between  citizens 
of  different  States;  —  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a  State,  or  the  citizens  thereof, 
and  foreign  States,  citizens,  or  subjects. 

[2.]  In  all  cases  affecting  ambassadors,  other  public  ministers,  and  con- 
suls, and  those  in  which  a  State  shall  be  party,  the  Supreme  Court  shall  have 
original  jurisdiction.  In  all  the  other  cases  before  mentioned,  the  Supreme 
Court  shall  have  appellate  jurisdiction,  both  as  to  law  and  fact,  with  such 
exceptions  and  under  such  regulations  as  the  Congress  shall  make, 

[3.]  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury;  and  such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall 
have  been  committed ;  but  when  not  committed  within  any  State,  the  trial 
shall  be  at  such  place  or  places  as  the  Congress  may  by  law  have  directed. 

SECTION  3.  [i.]  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort.  No  person  shall  be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confession  in  open  court. 

[2.]  The  Congress  shall  have  power  to  declare  the  punishment  of  treason, 
but  no  attainder  of  treason  shall  work  corruption  of  blood,  or  forfeiture 
except  during  the  life  of  the  person  attainted. 

1  Limited  by  Eleventh  Amendmenti 


APPENDIX  60 1 

ARTICLE  IV 

SECTION  i.  Full  faith^ajid^cjredit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other  State.  And  the 
Congress  may  by  general  laws  prescribe  the  manner  in  which  such  acts, 
records,  and  proceedings  shall  be  proved,  and  the  effect  thereof. 

SECTION  2.  [  i .]  The  citizens  of  each  State  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  States.1 

[2.]  A  person  charged  in  any  State  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another  State,  shall,  on  demand 
of  the  executive  authority  of  the  State  from  which  he  fled,  be  delivered  up, 
to  be  removed  to  the  State  having  jurisdiction  of  the  crime. 

[3.]  <No  person  held  to  service  or  labor  in  one  State,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or  regula- 
tion therein,  be  discharged  from  such  service  or  labor,  but  shall  be  delivered 
up  on  claim  of  the^party  to  whom  such  service  or  labor  may  be  due.^2 

SECTION  3.  [i.]  New  States  may  be  admitted  by  the  Congress  into  this 
Union ;  but  no  new  State  shall  be  formed  or  erected  within  the  jurisdiction  of 
any  other  State ;  nor  any  State  be  formed  by  the  junction  of  two  or  more 
States,  or  parts  of  States,  without  the  consent  of  the  legislatures  of  the  States 
concerned  as  well  as  of  the  Congress. 

[2.]  The  Congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property  belonging  to 
the  United  States ;  and  nothing  in  this  Constitution  shall  be  so  construed  as  to 
prejudice  any  claims  of  the  United  States,  or  of  any  particular  State. 

SECTION  4.  The  United  States  shall  guarantee  to  every  State  in  this  Union 
a  republican  form  of  government,  and  shall  protect  each  of  them  against 
invasion ;  and,  on  application  of  the  legislature,  or  of  the  Executive  (when 
the  legislature  cannot  be  convened),  against  domestic  violence. 

ARTICLE  V 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem  it  necessary, 
shall  propose  amendments  to  this  Constitution,  or,  on  the  application  of  the 
legislatures  of  two  thirds  of  the  several  States,  shall  call  a  convention  for 
proposing  amendments,  which,  in  either  case,  shall  be  valid  to  all  intents  and 
purposes,  as  part  of  this  Constitution,  when  ratified  by  the  legislatures  of 
three  fourths  of  the  several  States,  or  by  conventions  in  three  fourths  thereof, 
as  the  one  or  the  other  mode  of  ratification  may  be  proposed  by  the  Congress ; 
provided  (that  no  amendment  which  may  be  made  prior  to  the  year  one 
thousand  eight  hundred  and  eight  shall  in  any  manner  affect  the  first  and 
fourth  clauses  in  the  ninth  section  of  the  first  Article;  and)8  that  no  State, 
without  its  consent,  shall  be  deprived  of  its  equal  suffrage  in  the  Senate. 

1  Extended  by  Fourteenth  Amendment. 

2  Superseded  by  Thirteenth  Amendment  so  far  as  it  relates  to  slaves. 

3  Temporary  provision.  / 


602    THE  GOVERNMENT  OF  THE  UNITED  STATES 


ARTICLE  VI 

[i.]  <A11  debts  contracted  and  engagements  entered  into,  before  the  adopJ 
tion  of  this  Constitution,  shall  be  as  valid  against  the  United  States  under! 
this  Constitution,  as  under  the  Confederation.)  A 

[2.]  This  Constitution,  and  the  laws  of  the  United  States  which  shall  be] 
made  in  pursuance  thereof ;  and  all  treaties  made,  or  which  shall  be  madej 
under  the  authority  of  the  United  States,  shall  be  the  supreme  law  of  thq 
land ;  and  the  judges  in  every  State  shall  be  bound  thereby,  anything  in  the] 
Constitution  or  laws  of  any  State  to  the  contrary  notwithstanding. 

[3.]  The  Senators  and  Representatives  before  mentioned,  and  the  mem-] 
bers  of  the  several  State  legislatures,  and  all  executive  and  judicial  officers, I 
both  of  the  United  States  and  of  the  several  States,  shall  be  bound  byl 
oath  or  affirmation  to  support  this  Constitution  ;  but  no  religious  test  shall] 
ever  be  required  as  a  qualification  to  any  office  or  public  trust  under  the] 
United  States. 

ARTICLE  VII 

The  ratification  of  the  conventions  of  nine  States  shall  be  sufficient  for  thei 
establishment  of  this  Constitution  between  the  States  so  ratifying  the  same.  \ 

Done  in  convention  by  the  unanimous  con-j 

sent  of  the  States  present  the  seventeenth  davf 
[Note  of  the  draftsman  as 
......  of  September  in  the  year  of  our  Lord  one  thou-J 

to  interlineations  in  the  text 

,   ,  sand  seven  hundred  and  eighty-seven  and  of  thei 

of  the  manuscript.! 

A  Independence  of  the  United  States  of  America 

the  twelfth.    In  witness  whereof  we*  have  here-] 
WILLIAM  JACKSON,  unto  subscribed  our  names. 

G°  WASHINGTON 

Presid1  and  deputy  from  Virginia 

[Signatures  of  members,of  the  Convention.]2 

1  Extended  by  Fourteenth  Amendment,  Section  4. 

2  These  signatures  have  no  other  legal  force  than  that  of  attestation. 


APPENDIX  603 

[AMENDMENTS] 

ARTICLES  IN  ADDITION  TO  AND  AMENDMENT  OF  THE  CONSTITUTION 
OF  THE  UNITED  STATES  OF  AMERICA,  PROPOSED  BY  CONGRESS,  AND 

RATIFIED   BY  THE   LEGISLATURES  OF   THE   SEVERAL    STATES,   PURSUANT 

TO  THE  FIFTH  ARTICLE  OF  THE  ORIGINAL  CONSTITUTION  l 


[ARTICLE  I]2 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof ;  or  abridging  the  freedom  of  speech, 
or  of  the  press ;  or  the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  government  for  a  redress  of  grievances. 

[ARTICLE  II] 

A  well-regulated  militia  being  necessary  to  the  security  of  a  free  State,  the 
right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed. 

[ARTICLE  III] 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house,  without  the 
consent  of  the  owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed 
by  law. 

[ARTICLE  IV] 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and 
effects,  against  unreasonable  searches  and  seizures,  shall  not  be  violated,  and 
no  warrants  shall  issue,  but  upon  probable  cause,  supported  by  oath  or 
affirmation,  and  particularly  describing  the  place  to  be  searched,  and  the 
persons  or  things  to  be  seized. 

[ARTICLE  V] 

No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia,  when  in  actual  service 
in  time  of  war  or  public  danger ;  nor  shall  any  person  be  subject  for  the  same 
offence  to  be  twice  put  in  jeopardy  of  life  or  limb  ;  nor  shall  be  compelled  in 
any  criminal  case  to  be  a  witness  against  himself,  nor  be  deprived  of  life, 
liberty,  or  property,  without  due  process  of  law ;  nor  shall  private  property  be 
taken  for  public  use,  without  just  compensation. 

1  This    heading    appears    only  in   the  joint  resolution    submitting  the  first 
ten  amendments. 

2  Tn  the  original  manuscripts  the  first  twelve  amendments  have 


604    THE  GOVERNMENT  OF  THE  UNITED  STATES 

[ARTICLE  VI] 

In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  which  district  shall  have  been  previously 
ascertained  by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  accusa- 
tion ;  to  be  confronted  with  the  witnesses  against  him  ;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of 
counsel  for  his  defence. 

[ARTICLE  VII] 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a 
jury  shall  be  otherwise  re-examined  in  any  court  of  the  United  States  than 
according  to  the  rules  of  the  common  law. 

[ARTICLE  VIII] 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishments  inflicted. 

[ARTICLE  IX] 

The  enumeration  in  the  Constitution  of  certain  rights  shall  not  be  construed 
to  deny  or  disparage  others  retained  by  the  people. 

[ARTICLE  X] 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively  or  to 
the  people.1 

[ARTICLE  XI]2 

The  judicial  power  of  the  United  States  shall  not  be  construed  to  extend 
to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one  of  the 
Vy  ^       United  States  by  citizens  of  another  State,  or  by  citizens  or  subjects  of 
. 

[ARTICLE  XII]8 

The  electors  shall  meet  in  their  respective  States,  and  vote  by  ballot  for 
ident  and  Vice  President,  one  of  whom,  at  least,  shall  not  be  an  inhab- 
.t  of  the  same  State  with  themselves  ;  they  shall  name  in  their  ballots  the 

1  The  first  ten  amendments  appear  to  have  been  in  force  from  November  3, 
1791. 

2  Proclaimed  to  be  in  force  January  8,  1798. 

3  Proclaimed  to  be  in  force  September  25,  1804. 


,ftJ 


APPENDIX  605 

person  voted  for  as  President,  and  in  distinct  ballots  the  person  voted  for  as 
Vice  President,  and  they  shall  make  distinct  lists  of  all  persons  voted  for  as 
President,  and  of  all  persons  voted  for  as  Vice  President,  and  of  the  number 
of  votes  for  each,  which  lists  they  shall  sign  and  certify,  and  transmit  sealed 
to  the  seat  of  the  government  of  the  United  States^  directed  to  the  president 
of  the  Senate ;  —  the  president  of  the  Senate  shall,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted ;  —  the  person  having  the  greatest  number  of  votes  for 
President,  shall  be  the  President,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed;  and  if  no  person  have  such  majority,  then 
from  the  persons  having  the  highest  numbers  not  exceeding  three  on  the  list 
of  those  voted  for  as  President,  the  House  of 'Representatives  shall  choose 
immediately,  by  ballot,  the  President.  But  in  choosing  the  President,  the 
votes  shall  be  taken  by  States,  the  representation  from  each  State  having  one 
vote ;  a  quorum  for  this  purpose  shall  consist  of  a  member  or  members  from 
two  thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be  necessary  to 
a  choice.  And  if  the  House  of  Representatives  shall  not  choose  a  President 
whenever  the  right  of  choice  shall  devolve  upon  them,  before  the  fourth  day 
of  March  next  following,  th'en  the  Vice  President  shall  act  as  President,  as  in 
the  case  of  the  death  or  other  constitutional  disability  of  the  President.  —  The 
person  having  the  greatest  number  of  votes  as  Vice  President,  shall  be  the 
Vice  President,  if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed,  and  if  no  person  have  a  majority,  then  from  the. two  highest  num- 
bers on  the  list,  the  Senate  shall  choose  the  Vice  President ;  a  quorum  for  the 
purpose  shall  consist  of  two  thirds  of  the  whole  number  of  Senators,  and  a 
majority  of  the  whole  number  shall  be  necessary  to  a  choice.  But  no  person 
constitutionally  ineligible  to  the  office  of  President  shall  be  eligible  to  that  of 
Vice  President  of  the  United  States. 

ARTICLE  XIII l 

SECTION  i .  Neither  slavery  nor  involuntary  servitude,  except  as  a  punish- 
ment for  crime  whereof  the  party  shall  have  been  duly  convicted,  shall  exist 
within  the  United  States,  or  any  place  subject  to  their  jurisdiction. 

SECTION  2.  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 

ARTICLE  XIV2 

SECTION  I .  All  persons  born  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.  No  -State  shall  make  or  enforce  any  law  which  shall 

1  Proclaimed  to  be  in  force   December  18,   1865.     Bears   the   unnecessary 
approval  of  the  President. 

2  Proclaimed  to  be  in  force  July  28,  1868. 


606    THE  GOVERNMENT  OF  THE  UNITED  STATES 

abridge  the  privileges  or  immunities  of  citizens  of  the  United  States ;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law;  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws. 

SECTION  2.  Representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers,  counting  the  whole  number  of  persons 
in  each  State,  excluding  Indfans  not  taxed.  But  when  the  right  to  vote  at 
any  election  for  the  choice  of  electors  for  President  and  Vice  President  of  the 
United  States,  Representatives  in  Congress,  the  executive  and  judicial  officers 
of  a  State,  or  the  members  of  the  legislature  thereof,  is  denied  to  any  of  the 
male  inhabitants  of  such  State,  being  twenty-one  years  of  age,  and  citizens 
of  the  United  States,  or  in  any  way  abridged,  except  for  participation  in 
rebellion,  or  other  crime,  the  basis  of  representation  therein  shall  be  reduced 
in  the  proportion  which  the -number  of  such  male  citizens  shall  bear  to  the 
whole  number  of  male  citizens  twenty-one  years  of  age  in  such  State. 

SECTION  3.  No  person  shall  be  a  Senator  or  Representative  in  Congress, 
or  elector  of  President  and  Vice  President,  or  hold  any  office,  civil  or  military, 
under  the  United  States,  or  under  any  State,  who,  having  previously  taken  an 
oath,  as  a  member  of  Congress,  or  as  an  officer  of  the  United  States,  or  as  a 
member  of  any  State  legislature,  or  as  an  executive  or  judicial  officer  of  any 
State,  to  support  the  Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid  or  comfort  to  the 
enemies  thereof.  But  Congress  may  by  a  vote  of  two  thirds  of  each  House, 
remove  such  disability. 

SECTION  4.  The  validity  of  the  public  debt  of  the  United  States,  authorized 
by  law,  including  debts  incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion,  shall  not  be  questioned. 
But  neither  the  United  States  nor  any  State  shall  assume  or  pay  any  debt 
or  obligation  incurred  in  aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave ;  but  all  such 
debts,  obligations,  and  claims  shall  be  held  illegal  and  void. 

SECTION  5.  The  Congress  shall  have  power  to  enforce,  by  appropriate 
legislation,  the  provisions  of  this  article. 


ARTICLE  XV1 

SECTION  i .  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States  or  by  any  State  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

SECTION  2.  The  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

1  Proclaimed  to  be  in  force  March  30,  1870. 


APPENDIX  607 

ARTICLE  XVI1 

The  Congress  shall  have  power  to  lay  and  collect  taxes  on  incomes,  from 
whatever  source  derived,  without  apportionment  among  the  several  States 
without  regard  to  any  census  or  enumeration. 


ARTICLE  XVII2 

The  Senate  of  the  United  States  shall  be  composed  of  two  Senators  from 
each  State,  elected  by  the  people  thereof,  for  six  years  ;  and  each  Senator 
shall  have  one  vote.  The  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the  State  legislature. 

When  vacancies  happen  in  the  representation  of  any  State  in  the  Senate, 
the  executive  authority  of  such  State  shall  issue  writs  of  election  to  fill  such 
vacancies  : 

Provided,  That  the  legislature  of  any  State  may  empower  the  executive 
thereof  to  make  temporary  appointments  until  the  people  fill  the  vacancies 
by  election  as  the  legislature  may.  direct. 

This  amendment  shall  not  be  so  construed  as  to  affect  the  election  or  term 
of  any  Senator  chosen  before  it  becomes  valid  as  part  of  the  Constitution. 

ARTICLE  XVIII3 

SECTION  i.  After  one  year  from  the  ratification  of  this  article  the  manu- 
facture, sale,  or  transportation  of  intoxicating  liquors  within,  the  importation 
thereof  into,  or  the  exportation  thereof  from  the  United  States  and  all 
territory  subject  to  the  jurisdiction  thereof  for  beverage  purposes  is  hereby 
prohibited. 

SECTION  2.  The  Congress  and  the  several  States  shall  have  concurrent 
power  to  enforce  this  article  by  appropriate  legislation. 

SECTION  3.  This  article  shall  be  inoperative  unless  it  shall  have  been 
ratified  as  an  amendment  to  the  Constitution  by  the  legislatures  of  the  several 
States,  as  provided  in  the  Constitution,  within  seven  years  from  the  date  of 
the  submission  hereof  to  the  States  by  the  Congress. 

1  Passed  July,  1909;  proclaimed  February  25,  1913. 

2  Passed    May,    1912,    in    lieu    of   Article   I,    Section  iii,    clause   i,    of  the 
Constitution  and   so   much   of   clause  2    of   the    same    Section   as  relates   to 
the  filling  of  vacancies;    proclaimed   May  31,  1913. 

3  Passed  December  3,  1917  ;  proclaimed  January  29,  1919. 


INDEX 


Able-man  v.  Booth,  59,  61 

Abolition  movement,  91 

Adairv.  United  States,  411,  527 

Adams,  John,  plan  for  confederation 
of  states,  2 1  ;  failure  to  get  commer- 
cial treaty  in  England,  29,  108;  ap- 
pointment of  John  Marshall,  381 

Adams,  John  Quincy,  election  solidi- 
fied parties,  90  ;  "  Memoirs,"  549 

Adams,  Samuel,  committees  of  corre- 
spondence, 10;  and  federal  Consti- 
tution, 45 

Adams  Express  Co.  v.  Iowa,  488 

Adamson  Law,  525-526 

Addyston  Pipe  and  Steel  Co.  v.  United 
States,  481,  507 

Administration,  207-241  ;  Constitu- 
tion modified  in,  2 ;  made  possible 
by  political  parties,  2-3;  political 
operation  of  Constitution,  82 ; 
regulations,  232-241 ;  quasi-judicial 
decisions,  236-239 ;  liability  of  offi- 
'  cials,  240 ;  control  of  trusts  and 
combinations,  515-520 

Admiralty,  jurisdiction  of  federal 
courts,  391 ;  code,  395 

Agrarian  conditions  and  political  dis- 
content, 97 

Agriculture,  department  of,  261-265  5 
Bureau  of  Animal  Industry,  262  ; 
Bureau  of  Chemistry,  262  ;  Bureau 
of  Plant  Industry,  262;  Weather 
Bureau,  262  ;  Pure  Food  and  Drugs 
Act,  262-263  ;  Bureau  of  Entomol- 
ogy, 263  ;  Bureau  of  Soils,  263  ; 
Bureau  of  Biological  Survey,  264  ; 
Bureau  of  Crop  Estimates,  264 ; 
Bureau  of  Markets,  264 ;  Forestry 
Service,  264;  Office  of  Farm  Man- 
agement, 264 ;  Office  of  Public 
Roads  and  Rural  Engineering,  264  ; 
State  Relations  Service,  264 ;  con- 
servation of  forests,  264-265; 
forests,  265 

Agriculture,  House  Committee  on, 
346 

Alaska,  District  Court  of,  386;  gov- 
ernment of,  588-589 

Alexander,  De  A.  S.,  319,  324,  332 


Alien  Property  Custodian,  270 

Alien  and  Sedition  Law,  88 

Allen  v.  Smith,  447 

Ambassadors,  541-545;  appointment, 
199  ;  reception  of  foreign,  200 

Amendments,  of  federal  constitution, 
methods  of  enacting,  43-44 ;  sug- 
gested by  Massachusetts  ratifica- 
tion, 45 ;  first  eight  as  Bill  of  Rights, 
46-51;  First,  56;  Second,  56; 
Third,  56;  Fifth,  56,  411,  447; 
Seventh,  583  ;  Ninth,  38,  40,  48,  49, 
51  ;  Tenth,  38,  40,  48,  49,  51,  54; 
Eleventh,  38,  40,  41,  46,  54,  58,  61, 
39°>  391'  394,  418,  419;  Twelfth, 
146,  149;  Thirteenth,  51,  55,  288, 
583,  585;  Fourteenth,  38,  46,  51, 
54,  56,  66,  74,  78,  278,  279,  288,  393, 
417  ;  Fifteenth,  51,  55,  78,  288,  293, 
294,  295,  296;  Sixteenth,  419,  451  ; 
Seventeenth,  46,  107,  306;  Eight- 
eenth, 46 

American    Insurance    Co.    v.    Canter, 

575>  578,  58.1 

American  School  of  Magnetic  Healing 
v.  McAnnulty,  239 

American  Tobacco  case,  509 

Animal  Industry,  Bureau  of,  262 

Annapolis  Convention,  33 

Antislavery.    See  Slavery 

Appointment  and  removal.  See  Presi- 
dent 

Appropriation  bills,  375-376 

Appropriations,  House  Committee  on, 
345  ;  methods  of  making,  467-469 ; 
lack  of  coordination,  468-469 ;  in- 
crease with  increasing  functions, 
469  ;  sources  of  demands,  470-472  ; 
no  correlation,  472;  procedure  in 
bills,  472-474  ;  evils  of  present  sys- 
tem, 474 ;  suggested  reforms,  474  ; 
payments  and  audit,  478-479 

Arbitration,  526-527;  international, 
553;  treaties,  571 

Army,  regular,  424-425 ;  appropria- 
tions, constitutional  limitations,  425 ; 
National  Guard  and  volunteers, 
429;  legislation  of  1917  and  1918, 
43°-433 ;  military  law,  434~436 


609 


6lO    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Arthur,  President,  173 

Articles  of  Confederation.  See  Con- 
federation 

Assembly,  right  of,  56 

Association,  the,  of  First  Continental 
Congress,  19 

Atlantic  Coast  Line  v.  The  Railroad 
Commissioners  of  South  Carolina,^gi 

Attainder,  bills  of,  56 

Attorney-General,  250-253,  254 

Austin,  Benjamin,  109 

Austin  v.  Tennessee,  485,  487 

Bail,  excessive,  constitutional  provi- 
sions, 15 

Bakers'  case,  New  York,  411,  413 

Ballinger  investigation,  374 

B.  6°  O.  R.  R.  Co.  v.  Interstate  Com- 
merce Commission,  525 

Bank,  Second  of  United  States,  Re- 
publican party  and,  88 

Bankruptcy,  federal  regulation,  53 

Baiter  v.  O'Donnell,  512 

Beard,  C.  A.,  28,  81,  85,  89,  93,  205, 
291,  306,  309,  406 

Belligerency,  recognition  of,  556 

"  Big  business,"  101 

Bill  of  Rights,  English,  principles  in 
state  Bills  of  Rights,  1 5 ;  federal,  46 

Bills,  drafting  by  executive,  372 

Bills  of  credit.    See  Paper  money 

Bills  of  exchange,  482 

Bimetallism,  95,  100 

Biological  Survey,  264 

Blackstone,  on  separation  of  powers, 
67  ;  "  Commentaries,"  405 

Bland-Allison  Act,  95 

Bollman,  ex  parte,  444 

Bonds,  460 

Borrowing  money,  power  of  Congress 
under  Confederation,  23 

"  Boss,"  party,  114 

Boston,  colonial  wealthy  class,  9 ; 
committees  of  correspondence 
(1772),  10-11;  Gageblockaded  in,  20 

Boundaries,  554-555 

Bowman  v.  Chicago  &*  Northwestern 
R.  R.  Co.,  485,  486 

Brewer,  Justice,  402,  486 

Brimmer  v.  Rebman,  485 

Briscoe  v.  Bank  of  Kentuckv*  463 

Bristow,  Senator,  on  judicial  review, 
422 

British  trade  with  America,  revived 
after  1783,  24 

Brown,  Justice,  483 

Brown  v.  Maryland,  487,  490,  493 

Brown  v.  Walker,  195 


Brushaberv.  Union  P.  R.  Co.,  451 
Bryan,   William   Jennings,   99,    100; 

arbitration  treaties,  571 
Bryce,  James,  417 
Budget,   lack   of,   474;    attempts   at 

reform,  474-478 
Bunting  v.  Oregon,  412 
Burgess,  J.  W.,  211 
Business,  state  regulation  of,  489-491 
Butterworth  v.  United  States,  238 

Cabinet,  members  of  the,  185,  207- 
217  ;  comparison  with  English  and 
French,  207  ;  responsibility  to  presi- 
dent, 207 ;  constitutional  provisions, 
208 ;  growth,  208 ;  origin,  208 ; 
party,  209;  qualifications,  210;  sec- 
tional distribution,  210;  meetings, 
211,  212;  relation  to  president,  211, 
217;  influence,  212;  position  of 
members,  213,  214;  duties,  215; 
control  by  president,  215-216;  dis- 
cretionary and  ministerial  powers, 
216,221;  relation  to  Congress,  218- 
221;  presidential  control,  220;  no 
administrative  liability,  241 

Calderv.  Bull,  414 

California  v.  Central  Pacific  R.  R.  Co., 

501 

Campaign,  of  1896,  99,  100;  of  1900, 
100 ;  of  1912,  103;  state  and  na- 
tional, 127-135;  expenses,  134-137; 
preconvention,  of  1912,  153-154 

Campaign  funds,  164;  federal  laws 
governing,  165 

Campbell  v.  Hall,  3 

Canvass,  political,  130-131 

Castro  case,  239 

Caucus,  108;  congressional,  109,  no; 
legislative,  311-316 

Census,  Bureau  of,  266-267 

Chamberlain,  Senator,  431 

Champion  v.  Ames,  529-530,  531 

Channing,  Edward,  25 

Charleston,  wealthy  colonial  class,  9 

Charter,  colonial.    See  Colonies 

"  Checks  and  balances,"  42-43 

Chemistry,  Bureau  of,  262 

Chicago,  Pullman  strike,  420 

Child  Labor  Law,  414,  534-536,  539 

Children's  Bureau,  268 

Chinese,  588  ;  excluded  from  citizen- 
ship, 79 

Chinese  exclusion,  94,  96,  237-238 

Chinese  Exclusion  case,  497 

Chisholm  v.  Georgia,  58,  418 

Cincinnati,  Wilmington,  etc.,  R.  R.  Co, 
v.  Commission,  234 


INDEX 


611 


Circuit  Court  of  Appeals,  385 

Circuit  Courts,  380,  382,  383,  384 

Citizen,  protection  of  fundamental 
rights  of,  57 

Citizenship,  73-81;  double,  74;  de- 
fined by  Fourteenth  Amendment, 
74,  76  ;  defined  by  court,  75  ;  Dred 
Scott  decision,  76 ;  limitations  of 
privileges  of  state,  77,  78 ;  effect 
of  Fourteenth  and  Fifteenth 
Amendments,  78 ;  political  privi- 
leges granted  by  states,  78 ;  how 
gained,  79 ;  persons  excluded  from, 
79  ;  interstate  comity,  80  ;  extradi-  , 
tion,  80,  8 1  ;  Civil  Rights  cases, 
393 ;  territorial,  in  Hawaii,  587 ; 
territorial,  in  Porto  Rico,  590 

Civil  Rights  cases,  66,  393 

Civil  service,  221-232  ;  defined,  221  ; 
terms,  222  ;  partisan  system,  222- 
223;  spoils  system,  223-225;  re- 
form, 225;  present  system,  226; 
Pendleton  Act  (1883),  226;  exten- 
sion of,  226-227  ;  effect  on  party, 
227 ;  policy  of  Wilson,  228-229 ; 
Underwood  Tariff  Bill,  228;  Federal 
Reserve  Board,  228  ;  examinations, 
229-230  ;  promotions,  230  ;  re- 
moval for  cause,  231  ;  pensions,  232 

Civil  War,  Amendments  to  federal 
Constitution,  I ;  challenge  of  federal 
supremacy,  59 

Claims,  private,  against  foreign  na- 
tions, 554 

Clark,  Champ,  153,  154 

Clark,  Justice,  513 

Clark  Distilling  Co.  v.  Western  Mary- 
land R.  Co.,  489 

Clay,  Henry,  91,  92 

Clayton  Anti-Trust  Act,  258,  517-519, 
520 

Cleaves,  T.  P.,-  554 

Cleveland,  F.  A.,  474 

Cleveland,  Grover,  85,  93,  95,  99, 
171,  188,  382,  497;  civil  service 
reform,  227 

Coast  Guard,  247 

Cockran,  W.  Bourke,  theory  of  federal 
sovereignty,  367-368 

Cohens  v.  Virginia,  59,  61,  391 

Coin,  464 

Coinage,  standards  controlled  by 
Congres?  under  Confederation,  23 

Coleman  v.  Tennessee,  436 

Collector  v.  Day,  64 

Colonial  Congresses,  18-19 

Colonies,  political  experience  under 
Convention  of  1787,  2;  political 


and  social  similarities  and  differ- 
ences, 3 ;  charters  limited  legisla- 
tures, 3 ;  proprietary  and  royal, 
approval  of  legislation,  3,  4,  16; 
appointments  by  governor  and 
council,  4 ;  governor  and  council 
highest  court,  4  ;  governor's  coun- 
cil, appointment  and  functions,  4 ; 
proprietary,  council  appointed  by 
proprietor,  4 ;  veto  of  legislation  by 
governor,  4;  suffrage,  5;  appor- 
tionment of  representation,  5-6; 
place  representation  by  residents, 
6;  sectionalism,  6;  legislatures, 
governors,  and  finances,  6-7  ;  gov- 
ernors, appointment  and  functions, 
6-8  ;  judicial  powers  of  royal  gov- 
ernors, 7  ;  governor's  council,  re- 
moval, 7  ;  laws,  common  and 
statutory,  8  ;  justices  of  the  peace, 
8 ;  courts,  appeals  to  England,  8- 
9 ;  courts,  organization,  jurisdic- 
tion, and  procedure,  8-9 ;  judicial 
review  of  legislation,  8-9 ;  control 
by  appointed  officials,  9 ;  landed 
aristocracy  and  rich  merchants,  9 ; 
little  institutional  discontent  before 
Revolution,  9  ;  well-to-do  distrusted 
masses,  9 ;  revolutionary  govern- 
ments, national  and  state,  10;  com- 
mittees of  correspondence  and 
provincial  congresses,  n  ;  advice 
of  Continental  Congress,  12-13; 
bicameral  legislatures,  14;  inter- 
colonial congresses,  18-19;  repre- 
sentation in  Continental  Congress, 
19;  Continental  Congresses,  19-20 

Commerce,  power  to  regulate  denied 
to  Congress  under  Confederation, 
23  ;  federal  regulation  of,  53  ;  inter- 
state, 77  ;  regulation  of,  358-359, 
480-520 ;  foreign  and  interstate, 
480-483;  definition  of,  481-483; 
regulation  by  Congress  and  states, 
483-487  ;  federal  legislation  con- 
cerning, 494-498 

Commerce,  Department  of,  265-267  ; 
Bureau  of  Corporations,  266; 
Bureau  of  Foreign  and  Domestic 
Commerce,  266;  Bureau  of  Census, 
266-267  ;  Bureau  of  Fisheries,  267  ; 
Bureau  of  Navigation,  267  ;  Bureau 
of  Standards,  267;  Geodetic  Sur- 
vey, 267 ;  Steamboat  Inspection 
Service,  267 

Commerce  and  Labor,  Department  of, 
514 


612    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Commission  of  Economy  and  Effi- 
ciency, 474 

Committee,  on  Committees,  in  House, 
314;  on  Rules,  in  House,  329-331, 
340-342,  346;  on  Committees,  in 
Senate,  347  ;  of  the  Whole  House, 
352-353 ;  on  Ways  and  Means, 
467  ;  on  Appropriations,  467,  477  ; 
on  Estimates  and  Expenditures, 
467 

Committees,  of  Correspondence, 
Boston  Town  Meeting  suggests, 
10-11  ;  established  new  state  gov- 
ernments, 10-12  ;  House,  344-347  ; 
increasing  number  of,  344  ;  appoint- 
ment and  election,  347 ;  Senate, 
347-348 ;  Congressional  system, 
348-349,  350-355;  Party  (see 
Political  parties) 

Common  carriers.  See  Transportation 
and  Railroads 

Common-law  suits,  federal  courts 
follow  state  rules,  396,  397-398 

Commonwealth  v.  Caton,  17 

Compensation  and  insurance,  mili- 
tary, 439 

Compromises  of  federal  Constitution. 
See  Convention 

Comptroller  of  the  Currency,  466 

Comptroller  of   the  Treasury,   478- 

479 

Confederation,  Articles  of,  21-31 ; 
Articles  replaced  by  federal  Con- 
stitution,! ;  experience  under,  aided 
federal  Convention,  2;  adoption 
of,  legalized  national  government 
(1783),  10;  power  to  borrow  money, 
23 ;  weaknesses  of,  23 ;  amend- 
ment by  consent  of  alf  states,  23 ; 
American  trade  with  Britain  more 
than  with  France,  24 ;  fall  of  prices, 
24 ;  infant  industries,  24 ;  profits 
of  privateering  missed,  24 ;  unem- 
ployment problem,  24;  necessity 
for  economic  and  political  recon- 
struction, 24-25 ;  states  opposed 
Congress,  24-26 ;  causes  of  failure, 
24-31;  economic  depression  showed 
weaknesses,  25;  respect  for  gov- 
ernment lowered  by  Revolution, 
25;  economic  revival  (1787-1789), 
25;  not  responsible  for  economic 
depression  after  1783,  25  ;  violation 
by  states,  26-30 ;  national  govern- 
ment practically  bankrupt,  27 ; 
treaty  provisions  inconsistent,  29; 
amendment  proposed  to  give 
Congress  power  to  regulate  foreign 


commerce,  29 ;  period  of  unr 
within  the  states,  30 ;  no  power  in 
Congress  to  compel  states,  30-31  ; 
attempts  to  amend,  31-34  ;  amend- 
ment authorized  by  Congress,  33 ; 
party  favoring  in  federal  Conven- 
tion, 37 ;  no  separation  of  powers, 
68 

Conference  Committees,  354-355 
Congress,  composition  and  powers 
under  Articles  of  Confederation, 
21,  22-23  ?  state  opposition,  25-26; 
requisitions  unsatisfied  during  Rev- 
olution and  Confederation,  26;  in- 
ability to  enforce  treaties  under 
Confederation,  29 ;  attempts  to 
amend  Articles  of  Confederation, 
32-33;  under  Virginia  plan,  35; 
under  New  Jersey  plan,  37  ;  com- 
promises in  federal  Constitution, 
39 ;  powers,  42  ;  ejection  of  mem- 
bers, 43 ;  part  in  amending  Con- 
stitution, 43-44 ;  transmitted  Con- 
stitution to  states,  44  ;  power  over 
electoral  vote,  69 ;  relations  to  ex- 
ecutive, 70,  368-378 ;  relations  to 
judiciary,  70-71,  379-381,  386,  405- 
421;  encroachments  of,  72-73; 
amnesty  power,  195-196;  pardon- 
ing power,  196;  relations  with 
president,  201,  309;  presidential 
veto,  202,  204-206 ;  relation  to 
cabinet,  207,  218-221 ;  constitu- 
tional organization,  271-274;  bi- 
cameral, 273;  sessions,  274-275; 
dates  of  elections  and  opening, 
275;  actual  operation,  308-356; 
absence  of  cabinet  government, 
308-309;  two-party  system,  310; 
party  organizations,  310-311  ;  legis- 
lative caucus,  311-316;  floor  leaders, 
327—329;  committee  system,  344- 
349  ;  process  of  legislation, 350-356; 
powers  of,  357-362;  power  of  taxa- 
tion, 357-358»  445-452;  power  to 
borrow  and  to  coin  money,  357-358, 
460-463 ;  power  over  commerce, 
358,  480-520;  war  power,  359-360, 
423—444 ;  power  to  punish  crime, 
360-361  ;  judicial  power,  361:  ex- 
ecutive power,  361-362  ;  limitation 
of  legislative  powers,  362-368; 
establishes  federal  courts,  379 ; 
jurisdiction  of  federal  courts,  380, 
386;  power  to  abolish  inferior 
courts,  380 ;  judicial  review  of  acts, 
405-42 1 ;  power  to  declare  war,  437- 
439 ;  conduct  of  war,  437-438 ; 


INDEX 


613 


powers  in  foreign  affairs,  540 ; 
lack  of  real  power  in  foreign  affairs, 
558 ;  power  over  federal  territory, 

579-581 
Congressional  committees  of  parties, 

113.  M4 

Connecticut,  used  colonial  charter  as 
constitution,  13;  refused  to  cooper- 
ate commercially  with  other  states, 
29  ;  trade  taxed  by  New  York,  29  ; 
ratified  federal  Constitution,  45; 
power  of  executive,  68 

Connecticut  colony,  council  elected, 
4 ;  legislation  not  subject  to  royal 
veto,  4  ;  assembly  controlled  gov- 
ernor and  council,  8  ;  appeals  from 
courts  to  England,  8-9 ;  free  from 
royal  and  proprietary  officials,  9 

Conscription.    See  Draft  Act 

Conservation,  264-265 

Constitution,  federal,  little  changed  by 
amendments,  i;  not  revision  of  Arti- 
cles of  Confederation,  I ;  "  checks 
and  balances,"  and  Seventeenth 
Amendment,  1-2 ;  occasions  and 
effects  ofi  respective  Amendments, 
1-2;  based  on  colonial  and  Con- 
federation experience,  2  ;  modifi- 
cations besides  Amendments,  2-3  ; 
enforceable  by  all  courts,  40-41 ; 
operation  upon  individuals,  40-41 ; 
"  supreme  law  of  the  land,"  40-41  ; 
compromise  between  democracy 
and  conservatism,  41-42  ;  methods 
of  amending,  43-44  ;<  method  of 
adopting,  44 ;  ratification  contest, 
44-46 ;  analysis  in  the  "  Federal- 
ist," 45 ;  origin  of  national  parties 
in  ratification,  45  ;  liberal  and  strict 
construction,  45,  364-368;  implied 
powers,  46 ;  powers  delegated  to 
federal  government,  48—50,  52— 54  > 
powers  reserved  to  states,  51,  54; 
distribution  of  powers,  52-55; 
created  federal  government,  52,  57  ; 
"elastic  clause,"  53;  concurrent 

•  powers,  54 ;  powers  prohibited  to 
states,  54,  55;  prohibitions  on  fed- 
eral government,  55 ;  powers  re- 
served to  people,  55 ;  protection 
of  property,  56 ;  protection  of  per- 
sonal liberty,  56 ;  operated  by  men 
in  political  activities,  82  ;  political 
operation  of,  82-105;  interstate 
commerce  clause,  263  ;  written,  evo- 
lution of  idea,  405  ;  Supreme  Court 
best  interpreter,  416;  war  powers, 
423 ;  power  over  commerce,  480- 


520  ;  not  applied  to  territory  occu- 
pied by  military,  578;  application 
to  territories,  581-582,  583,  584.  See 
also  Amendments,  Convention, 
Nullification,  State  rights,  Terri- 
tories 

Constitution,  state,  early  type,  limited 
governor's  power,  8  ;  proclamation 
or  submission  during  Revolution, 
'  II-I2  ;  of  states  (see  also  States) 

Constitution,  written,  colonial  char- 
ters, 3 

Consular  Bureau,  541 

Consular  service,  546-547 

"  Continental  Army,"  429 

Continental  Congress,  18-20;  mem- 
bers in  Convention  (1787),  2;  as 
provisional  national  government 
during  Revolution,  10 ;  requisitions 
for  men  and  money,  10;  Journal,  12; 
advice  to  Massachusetts  (1775),  I2» 
creation  of  state  governments,  18 ; 
First,  a  diplomatic  body,  19;  First, 
Declaration  of  Rights  and  the  as- 
sociation, 19;  Second,  undertook 
armed  resistance,  20 ;  Second,  ir- 
regular membership,  20 ;  Second, 
diplomatic  assembly  of  state  dele- 
gates, 20  ;  reasons  for  issuing  paper 
money,  27-28 ;  asked  for  tariff 
power  (1781),  32 

Continental  currency,  use  during 
Revolution,  27 

Contraband,  570 

Contract  labor,  497 

Contract  obligation,  states  forbidden 
to  impair,  39,  56 

Convention,  federal,  made  new  frame 
of  government,  i  ^  planned  balance 
between  state  and  federal  powers, 
i  ;  background  of  members,  2,  3 ; 
Hamilton  proposed,  for  amending 
Articles,  31  ;  genesis,  31-33  ;  called 
by  Congress,  33;  development  of 
idea,  33;  originated  in  Annapolis 
Convention,  33;  delegates,  34;  most 
delegates  instructed  for  amend- 
ments only,  34;  organization,  35; 
Virginia  plan,  35-37  ;  proceedings, 
35-46;  decided  on  new  Constitu- 
tion, 36;  state-rights  opposition, 
36-37  ;  large  and  small  states,  37 ; 
New  Jersey  plan,  37-38;  executive, 
38;  "supreme  law  of  the  land" 
idea,  38  ;  compromises,  38-39 ;  ap- 
portionment of  representation,  39 ; 
powers  of  Congress,  39;  prohibi- 
tions on  states,  39;  two-branch 


6 14    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Congress,  39 ;  provisions  for  rati- 
fying Constitution,  44;  origin  of 
national  parties,  86;  judicial  review 
of  legislation,  406 

Conventions,  party,  109;  state,  no, 
123-124;  national,  in  ;  county, 
123-124;  party,  of  1912,  153-154; 
organization,  composition,  and  pro- 
cedure, 1 54- 1 63 ;  committee  on  reso- 
lutions, 1 58  ;  platform,  1 58  ;  effect  of 
direct  primary,  159;  nominations, 
159,  162;  stampede,  160;  Demo- 
cratic (191 2),  160,161;  balloting,  161; 
Republican  (1912),  161 ;  selection  of 
national  committees,  163 

Cooley,  T.  M.,  446,  447,  521 

Cooley  v.  Board  of  Wardens  of  the  Port 
of  Philadelphia,  449 

Coppage  v.  Kansas,  412 

Corporation  tax,  451,  458,  515 

Corporations,  Bureau  of,  266,  514; 
state  regulation  of,  489-491 

Cort,  J.  B.,  571 

Court  of  Claims,  387-388,  395,  471 

Courts.  See  Admiralty,  Judiciary, 
States,  Supreme  Court 

Covington  &>  Cincinnati  Bridge  Co. 
v.  Kentucky,  484 

Craig  v.  Missotiri,  463 

Crawford,  William  H.,  no 

Cream  of  Wheat  case,  517-518 

Crime  of  1873,  95 

"Critical  Period"  (1783-1789).  See 
Confederation 

Crop  estimates,  Bureau  of,  264 

Crown,  review  of  colonial  legislation, 

3-4 

Cuba,  government,  592 

Currency,  kinds,  463-465 

Curtis,  George  William,  civil  service 
reform,  225 

Custom  modifies  federal  Constitu- 
tion, 2 

Customs  Appeals,  Court  of,  386,  388 

Cyclopedia  of  American  Government, 
399.  546 

Dallinger,  F.  W.,  108,  no 
Danbury  Hatters  case,  519 
Dartmouth  College  case,  413 
Dartmouth  College  v.  Woodward,  413 
Debate,    limitation     of,     in     House, 

338 

Debs,  tn  re,  60,  190,  538 
Declaration  of  Independence  created 

no  new  government,  20 
Declaration  of  Rights,  of  First  Con- 
tinental Congress,  19 


Delaware,  proprietary  and  royal  ap- 
proval of  colonial  legislation,  4 ;  co- 
lonial governor,  election,  term,  and 
powers,  14;  constitution,  amend- 
ment, 16;  delay  in  ratifying  Articles 
of  Confederation,  21  ;  fade  taxed 
by  Pennsylvania,  29;  ratified  fed- 
eral Constitution,  45 

Democracy,  caused  Seventeenth 
Amendment,  i  ;  theories  of,  spread 
by  Revolution,  25;  Jeffersonian,  88, 
89;  Jacksonian,  90,  91 

Democratic  party,  effect  of  Civil  War, 
93;  revival,  93;  campaign  of  1896, 
99;  campaign  of  1912,  103;  con- 
trol of  Southern  states,  115;  control 
of  New  York  City,  115;  Northern 
delegates  in  conventions,  157-158; 
convention  of  1912, 160;  "unitrule" 
in  conventions,  161 ;  nomination  in 
convention,  162;  on  Income  Tax 
case,  419  ;  on  Dred  Scott  case,  420 ; 
criticism  of  judiciary  (1895),  42o- 
421 ;  tariff  for  revenue  policy,  495 

Democratic-Republicans  and  liberal 
construction,  87-89 

Dennis,  A.  P.,  163 

Departments,  creation  of,  176,218;  ex- 
ecutive, 208-209,  242-270 ;  organi- 
zation and  functions,  242  ;  heads, 
243 ;  bureaus  and  divisions,  243 ;  offi- 
cers, 243-244;  estimates,  471,  472 

Depositories,  federal,  460 

Dick  Company  case,  51 1-512,  513,  518 

Dickinson,  John,  drafted  Articles  of 
Confederation,  21 

Diggs  case,  21 1 

Diplomatic  Bureau,  541 

Diplomatic  service,  541-547 

Direct  taxes,  357-358,  450 

Dissenting  opinions  of  Supreme 
Court  justices,  402-403,  404 

District  of  Columbia,  592 

District  Court,  383-384 

Division  of  powers  between  state 
and  federal  governments,  changed 
by  Thirteenth,  Fourteenth,  Fif- 
teenth, and  Eighteenth  Amend- 
ments, 1-2  ;  under  Confederation, 
22-23,  57 

Dr.  Miles  Medical  Co.  v.  Park,  513 

Dodd,  W.  F.,  14 

Domestic  loans,  one  method  of  financ- 
ing Revolution,  27 

Dominion  of  United  States,  583-584 

Dooley  v.  United  States,  193,  578,  579 

Doubtful  states,  115 

Douglas,  Stephen  A.,  92 


INDEX 


615 


Downes  v.  Bidwell,  402,  583 

Draft  Act,  430,  431,  432 

Dred  Scott  decision,  74,  76,  403,  416, 
420,  582 

"  Drummers,"  490 

"  Due  process  of  law,"  51,  413  ;  state 
must  grant,  56 ;  tax  sales,  235  ;  exec- 
utive regulations,  235  ;  postal  fraud 
orders,  236  ;  in  taxation,  448 

Dutch  settlers  of  New  York,  hatred 
of  militarism,  423 

Dyn'es  v.  Hoover,  436 

Eaton,  D.  B.,  118 
Education,  Commissioner  of,  261 
Edye  v.  Robertson,  449 
Efficiency,  Bureau  of,  269 
"Elastic  clause,"  176,  362,  461 
Election 'of  president  of  the  United 
States,  8  ;  method  changed  by  the 
Twelfth  Amendment,   i  ;    of  1800, 
caused  Twelfth  Amendment,  i 
Embargoes,  495  [459 

Emergency  Revenue  Act  (1914),  458- 
Emergency  war  legislation,  power  of 

president  in,  177 
Emert  v.  Missouri,  491 
Eminent  domain,  447 
Employers'   Liability  Acts,  410-411, 

414,  417,  482,  523-524 
Employers'  Liability  cases,  410,  411 
Entomology,  Bureau  of,  263 
Equal  protection  of  the  laws,  56 
Equity  code,  396;  federal  courts  do 
not  follow  state  rules,  397  ;  "  law  " 
and  "  equity,"  398,  401 
"  Era  of  Good  Feeling,"  89 
Espionage  Act  (1917),  537~538 
Excess  profits  tax,  459-460 
Executive,  federal,  under  New  Jersey 
plan,   37  ;    compromise  in  federal 
Convention,    38-39 ;    extension  of 
powers,  73 ;  relation  to  legislative, 
368-378.  See  also  Cabinet,  Colonies, 
President  (and  the  presidents  by 
name),  Separation  of  powers,  States 
Executive  agents,  545-546 
Executive  agreements,  551-553 
Expansion  of  the  United  States,  564 
Expenditures,  federal,  payments  and 
audit,  478-479  [39 

Export  duties,  states  forbidden  to  lay, 
Ex  post  facto  laws,  56 
Extradition,  80,  81 

Fairlie,  J.  A.,  217,  233,  234,  235,  242, 

243,  251 
Farm  Management,  Office  of,  264 


Federal  agents,  protected  by  federal 
courts,  61—63 

Federal  courts,  extension  of  jurisdic- 
tion, 53 

Federal  Farm  Loan  Act,  247 

Federal  government,  factors  in  evolu- 
tion of,  2-3;  one  of  delegated 
powers,  48-50  ;  exclusive  powers, 
52-53 ;  constitutional  prohibitions, 
55;  taxing  power  limited,  56;  divi- 
sion of  powers  with  states  (see 
Division) 

Federal  officers,  protection  by  federal 
courts,  60-6 1 ;  terms,  187 

Federal  property,  taxation  by  states, 
63,  64 

Federal  Reserve  banking  system,  104, 
465-466 

Federal  revenue,  515 

Federal  supremacy,  promoted  by 
Thirteenth,  Fourteenth,  Fifteenth, 
and  Eighteenth  Amendments,  1-2  ; 
during  Revolution,  18;  idea  of,  in 
New  Jersey  plan,  38  ;  Ninth,  Tenth, 
and  Eleventh  Amendments  against, 
38  ;  Fourteenth  favors,  38  ;  federal 
powers,  general  and  specific,  39 ; 
action  on  individuals,  40-41;  "su- 
preme law  of  the  land  "  and  federal 
courts,  41,  57-66 ;  custom,  interpre- 
tation, legislation,  57 ;  against  state 
sovereignty,  58 ;  against  state 
legislative  action,  58 ;  review  of 
state  judicial  action,  58  ;  Taney  on, 
59 ;  Lincoln  on  secession  ordi- 
nances, 59;  challenged  by  Civil 
War,  59,  60 ;  ex parte  Siebold,  60 ; 
Debs  case,  60 ;  private  suits,  60 ; 
methods  of  assertion  of,  61-66; 
appeal  to  federal  courts,  61  ;  re- 
moval to  federal  courts,  61  ;  pro- 
tects private  rights,  66;  federal 
courts  maintain,  66;  early  party 
issue,  86,  87 ;  influence  of  Civil 
War,  92  ;  extension  during  World 
War,  104;  constitutional  interpre- 
tation, 362-366 ;  judiciary  enforces 
constitutional  rights,  391  ;  federal 
courts  reach  individuals,  394 ;  de- 
clare state  acts  unconstitutional, 
409 ;  upheld  by  Marshall  and  Taney, 
417  ;  war  powers  of  Congress,  423- 
444 ;  regulation  of  commerce,  480- 
520;  federal  police  power,  520-539 

Federal  Trade  Commission,  515,  516 ; 
trade  regulation,  237 

"  Federalist,  The,"  authorshipand  pur- 
pose, 45 


616    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Federalists,  86,  87  ;  financial  policy, 

87  ;  industrialism,  89 
Field,  Chief  Justice,  on   commerce, 

481,485 

Field  v.  Clark,  232,  495,  496 

"  Filibuster  "  in  Senate,  343 

Finance,  power  of  Congress  under 
Hamilton's  plan  of  1780,  32;  fed- 
eral, 445-479 

Finley,  J.  H.,  142,  205 

First  National  Bank  of  Bnmswick  v. 
Yank  ton,  581 

Fish,  C.  R.,  222,  224 

Fisheries,  Bureau  of,  267  . 

Fitzgerald,  Congressman,  467,  477 

Fleming  v.  Page,  575 

Fletcher  v.  Peck,  409 

Flint  v.  Stone  Tracy  Co.,  451 

Floor  leader,  325-326,  327-329 

Follett,  M.  P.,  322,  323 

Fong  Yue  Ting  v.  United  States,  576 

Food  and  Drugs  Act,  528-529 

Force  Act,  135,  293 

Ford,  H.J.,  88,  89,  172,  174,  176,  371, 
467,  470 

Foreign  Affairs,  540-573  ;  control  of, 
given  to  Congress  under  Confed- 
eration, 23  ;  in  president's  message, 
203  ;  House  Committee  on,  346 ; 
powers  of  Congress,  540 ;  agencies 
for  conduct  of,  540-547  ;  methods 
of  conducting,  547-553;  questions 
of  foreign  policy,  553-558 ;  position 
of  United  States  in,  562-568 

Foreign  commerce.    See  Commerce 

Foreign  loans,  one  method  of  financ- 
ing Revolution,  27 

Foreign  trade,  power  of  Congress 
under  Hamilton's  plan  of  1780,  32 

Forestry  service,  264 

Forests,  national,  265 

Foster,).  W.,  549,  556,  551 

Fourteen  Diamond  Rings  v.  United 
States,  449 

"  Franking  privilege,"  280 

Franklin,  Benjamin,  plan  of,  for  union 
in  1774,  21 

Fraud  orders,  359 

Free  Soil  party,  91 

Freeborn  v.  The  Protector,  437 

Freedom  of  the  press,  provisions  in 
state  Bills  of  Rights,  1 5 

Freedom  of  religion,  56 

Freedom  of  speech,  guaranteed,  56 

Fugitive  Slave  Law,  59 

Fuller,  Chief  Justice,  419 

Fuller,  H.  B.,  323 

Fundamental  law.    See  Constitution 


Gage,  General,  blockaded  in  Boston,  ) 
20 

Gallatin,  Albert,  88 

Garfield,  James  A.,  171 

Garland,  ex  parte,  197 

Garnett,  in  re,  395 

Garrison,  Secretary  L.  M.,  424 

Garrison,  William  Lloyd,  91 

Gates,  H.  C.,  242 

General  Staff,  248;  plan  of  1917,430 

General  warrants,  forbidden  by  Bills 
of  Rights,  1 5 

Geodetic  Survey,  267 

Georgia,  youngest  of  thirteen  colo- 
nies, 3 ;  constitution,  method  of 
amendment,  16;  war  and  treaties 
with  Indians,  28 ;  ratified  federal 
Constitution,  45 

Germany,  attitude  of,  on  President 
Wilson,  104 

"  Gerrymandering,"  291-292 

Gibbons  v.  Ogden,  480,  499,  535 

Gillett,  Representative,  474 

Gompers  v.  Sticks  Stove  and  Range 
Co.,  401 

Gonzales  v.  Williams,  589 

Goodnow,  F.  J.,  175,  233,  235,  241,  .243 

Governors,  colonial  (see  Colonies) ; 
state  (see  States) 

Grand  jury  not  necessary  in  federal 
territory,  585 

Granger  movement,  101 

Grant,  President,  94 

Great  Britain,  methods  of  revolu- 
tionary opposition  to,  10-11  ;  party 
organization,  84 

Great  Charter  of  England,  15 

Greenback  party,  94,  96,  98,  101 

Greenbacks,  461,  462,  464 

Guam,  government  of,  591 

Guam  Islands  Act,  576 

Guinn  v.  United  States,  296 

Gulf,  Colorado,  and  Santa  Fe  R.  R. 
Co.  v.  Heftey,  486 

Habeas  corpus,  suspension  of  writ  of, 
56,  443-444 ;  writ  of,  399-400 

Hague,  The,  553;  conferences,  570 

Haines,  W.  H.,  313,  314 

Hall,  W.  E.,  556,  559,  569 

Hamilton,  Alexander,  saw  weaknesses 
of  Confederation,  24;  criticized  Con- 
federation and  proposed  changes, 
31-32,  33;  at  Annapolis  Convention, 
33  ;  "  The  Federalist,"  45  ;  thought 
federal  Bill  of  Rights  unnecessary, 
46,  48  ;  financial  policy  of,  87  ;  rec- 
ommended protective  tariff,  494 


INDEX 


617 


Hammer  v.  Dagenhart,  536 

Hancock,  John,  and  federal  Constitu- 
tion, 45 

Hanna,  Marcus  A.,  100,  163-164 

Harding,  S.  B.,  45 

Harlan,  Justice  J.  M.,  criticism  of 
judicial  legislation,  72  ;  dissenting 
opinion  in  Insular  cases,  402;  on 
labor,  411;  on  income  tax,  415, 
419;  in  Tobacco  Trust  case,  415- 
416;  in  Northern  Securities  case, 
508;  on  Anti-Trust  Law,  510;  on 
law  regarding  relation  of  interstate 
carriers  to  labor  unions,  527 

Harmon,  Governor,  153 

Harrison,  Benjamin,  197,  198;  civil 
service  reform,  227 

Hart,  A,  B.,  162,  171,  564 

Harvey,  George,  170 

Hawaii,  District  Court  of,  386;  prob- 
lems in  acquisition,  583 ;  act  of 
1900,  587  ;  suffrage,  587  ;  govern- 
ment of,  587-588 

Hawaii  v.  Mankichi,  585 

Hay,  Representative,  army  plan  of, 
424 

Hay  burn's  Case,  406 

Hayes,  President,  171,  173 

Hayes-Tilden  election  (1876-1877), 
144-145 

Haynes,  F.  E.,  93,  97 

Haynes,  G.  H.,  305,  306,  307 

Head  Money  Cases,  449 

Henfield,  Gideon,  560 

Henry,  Patrick,  popularized  Locke's 
theories,  1 5 ;  for  consolidated 
America  at  First  Continental  Con- 
gress, 19 

Henry  v.  Dick  Co.,  511,  512 

Hepburn  v.  Griswold,  461 

Hepburn  Act,  102 

Hershey,  A.  T.,  555 

Hilton  v.  Merritt,  236 

Hinds,  A.,  321 

Hinsdale,  M.  L.,  207,  208,  211,  214, 

283 
Hipolite    Egg    Co.   v.    United   States, 

528 
Hitchman      Coal     &     Coke     Co.     v. 

Mitchell,    401 
Hoke  v.  Smith,  534 
Hoke  v.  United  States,  533 
Holmes,  Justice,  on  martial  law,  441- 

442 ;    dissent   in   Lochner  v.   New 
York,  484 

Holy  Alliance,  564-567 
Hours    of   labor,  limitation  of,  411- 

413,  524-525 


House  of  Representatives,  revenue 
bills,  56 ;  qualifications  for  member- 
ship, 275-276;  election  contests, 
276-277,  333;  expulsion  of  mem- 
bers, 277  ;  disabilities  of  members, 
277  -279 ;  may  refuse  to  seat  a  mem- 
ber, 279;  salaries  and  perquisites 
of  members,  279-281  ;  Speaker  of, 
281,  316-326;  other  officers,  281; 
procedure,  282,  284  ;  quorum,  282 ; 
discipline,  283;  journals,  283; 
revenue  legislation,  285-286;  im- 
peachment, 285-288 ;  apportion- 
ment of  representatives,  288-289 ; 
representatives  chosen  by  districts, 
289-291;  "gerrymandering,"  291- 
292  ;  federal  control  of  elections  to, 
292-293  ;  ^vacancies,  294 ;  qualifica- 
tions -for  voters,  294-298 ;  floor 
leaders,  327-329;  Committee  on 
Rules,  329-331  ;  organization  for 
each  Congress,  332-333  ;  rules  and 
procedure,  333-342 ;  obstruction, 
337 ;  limitation  of  debate,  338.  See 
also  Congress 

Houston,  East  and  West  Texas  R.  Co. 
v.  United  States,  504 

Howard 'v.  Illinois  Cent.  R.  R.  Co.,  524 

Hughes,  Justice,  492,  529 

Hylton  v.  United  States,  407,  450 

Immigrant  women,  protection  of,  532 
Immigration,    Bureau    of,    267-268 ; 
regulation   of,  496-498 ;    Commis- 
sion, 497 

Impeachment,  195,  285,  286-288,  376; 
under  first  state  constitutions,  15; 
of  judges,  383 

Implied  powers,  Marshall  on,  49  , 
Income  tax,  98,  99,  358,  450-451 ;  of 

i9J3>  458 

Income  Tax  case,  415,  419 

Independence,  recognition  of  a  re- 
volting community,  557-558 

Indian  Office,  260 

Indians,  war  and  treaties  with  Georgia, 
28  ;  commerce  with,  494 

"  Infant  industries,"  suffered  during 
Confederation,  24 

"  Inferior  officer,"  183 

Initiative,  referendum,  and  recall,  102 

Injunction,  issue  by  federal  courts, 
400—401 ;  use  against  labor  criti- 
cized, 420 

Insular  Cases,  402,  575,  583 

Insular  possessions,  under  War  De- 
partment, 248,  249,  250 

Insurance,  483 


618    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Insurgency,  555 

Interior,  Department  of,  257-261  ;  Pat- 

ent Office,  257  ;  Land  Office,  258; 

public    lands,    259;     Reclamation 

Service,    259-260  ;    Indian    Office, 

260  ;      Pension     Office,     260-261  ; 

Commissioner  of  Education,  261  ; 

Bureau  of  Mines,  261 
Interlocking  directorates,  519 
Internwuntain  Rate  Cases,  502 
Internal  improvements,  499-501 
Internal  revenue,  456 
International  Harvester   Co.  v.   Mis- 

souri, 490 
International  Law  and  United  States, 

569-573 

Interstate  commerce,  state  discrimi- 
nation in  favor  of  own  citizens,  77  ; 
powers  of  president  on,  176;  con- 
stitutional provision  on,  263  ; 
House  Committee  on,  346;  legisla- 
tion concerning,  498-505  ;  lotteries, 

529-532( 
Interstate     Commerce    Commission, 

101,    388-389,    501-505,    515-516; 

railroad  rate  regulation,  236  * 
Interstate    Commerce     Commission   v. 

Cincinnati,  N.  O.  &  Texas  Pacific 

R.  R.  Co.,  502 

Interstate  commerce  law,  104,  501 
Interstate  relations,  citizenship  and, 


Intervention,  556-557 

Intoxicating  liquor,  interstate  traffic, 

487-489 
"  Isolation  "  of   United   States,    562  ; 

Wilson  abandons,  571 

Jackson,  Andrew,  90-91,  170;  spoils 
system,  223 

Jackson,  in  re,  537 

James  v.  Bowman,  294 

Japanese,  588  ;  excluded  from  citizen- 
ship, 79 

Jay,  John,  "  The  Federalist,"  45 

Jay  Treaty,  553 

Jefferson,  Thomas,  87  ;  popularized 
Locke's  theories,  1  5  ;  attack  on 
judiciary,  72;  and  political  party, 
88  ;  democracy,  88  ;  agrarian  views, 
89,  no,  170;  theory  of  federal 
sovereignty,  366-367,  418 

Johnson,  Andrew,  impeachment  of, 
149 

Johnson  v.  Southern  Pacific  R.R.  Co., 
522 

Jones  v.  United  States,  576 

Judges,  recall  of,  421 


Judicial  code  of  1911,  381,  383 
Judicial  interpretation.  See  Courts 
Judicial  review  of  legislation,  405- 
421;  in  colonies,  8-9;  by  state 
courts,  16-17  >  extends  federal  con- 
trol, 51;  attack  on,  102,  421-422; 
in  Convention  of  1787,  406; 
Marshall  on,  407-409;  kinds  of 
statutes  annulled,  410-412  ;  reason- 
ing of  court,  413;  dissenting  opin- 
ions, 414-418 

Judiciary,  federal,  379-422  ;  Supreme 
Court  decisions  caused  Eleventh 
and  Sixteenth  Amendments,  i ; 
modification  of  federal  Constitu- 
tion by,  2  ;  under  New  Jersey  plan, 
37-38  >  jurisdiction,  40-41  ;  state 
and  federal,  to  enforce  constitu- 
tions above  legislation,  41,  71,  363, 
405  ;  central  feature  of  federal  Con- 
stitution, 41  ;  increasing  jurisdic- 
tion of,  53,  54 ;  enforces  federal 
supremacy,  60 ;  appeal  from  state 
to  federal,  61,  392-393;  removal 
from  state  to  federal,  61  ;  tenure 
and  salary  of  judges,  69,  382-383, 
385;  relations  to  executive  and 
legislative  departments,  70-71; 
charged  with  usurpation,  72  ;  con- 
trol of  naturalization,  79 ;  limited 
Interstate  Commerce  Commission, 
101,  502;  political  attacks  on  state' 
and  federal,  102 ;  unwilling  to 
interfere  in  party  disputes,  166- 
167;  appeal  from  administrative 
decisions,  238-239 ;  decision  on 
administrative  liability,  240-241 ; 
House  Committee  on,  346 ;  power 
of  Congress,  361  ;  liberal  and  strict 
construction,  364-368 ;  courts  es- 
tablished by  Congress,  379;  Su- 
preme Court  and  Constitution,  379; 
appeals  controlled  by  Congress, 
380 ;  abolition  of  inferior  courts, 
380;  Congress  and  jurisdiction, 
380-381 ;  appointment  of  judges, 
381;  District  Court,  383-384;  Cir- 
cuit Court,  384-38 5;  Circuit  Court  of 
Appeals,  385  ;  Supreme  Court,  385  ; 
original  and  appellate  jurisdiction 
of  Supreme  Court,  386-387  ;  Court 
of  Claims,  387-388  ;  Court  of  Cus- 
toms* Appeals,  388 ;  appeals  in 
customs  and  interstate  commerce, 
388-389 ;  Commerce  Court,  389  ; 
jurisdiction  of  United  States  courts, 
390—398 ;  jurisdiction  for  enforce- 
ment of  constitutional  rights,  391, 


INDEX 


619 


392 ;  court  rules,  392-393 ;  juris- 
diction wider  than  legislative  power, 
393-394 ;  share  of,  in  developing 
admiralty  code,  395 ;  does  not  en- 
force commercial  law  of  states, 
396-397  ;  operation  of  courts,  398- 
404;  writ  of  habeas  corpus,  399-400 ; 
writ  of  mandamus,  400  ;  injunction, 
400 ;  appellate  jurisdiction,  401 ; 
procedure  of  Supreme  Court,  401- 
404  ;  Supreme  Court  and  legisla- 
tion, 405-421  ;  parliamentary  su- 
premacy and  judicial  supremacy, 
405 ;  division  on  constitutional 
decisions,  414-416;  interpreter  of 
Constitution,  416;  response  to 
public  opinion,  416-418;  courts 
and  politics,  418-422  ;  conflicts  with 
legislative  and  executive  depart- 
ments, 418-422 ;  method  of  limiting 
Congress,  531-532 

Judiciary  (before  Constitution),  re- 
view of  colonial  legislation  by  king 
in  council,  3-4,  8-9,  16;  governor 
and  council  highest  colonial  court, 
4 ;  special  courts  under  Confed- 
eration, for  interstate  disputes,  22  ; 
state,  bound  by  federal  laws  under 
New  Jersey  plan,  38 

Judiciary  Act  of  1789,  60,  61,  63,  250, 

384,  394 

Julhard  v.  Greenman,  461 
Jury  trial,  federal  guarantee,  56;    in 

territories,  585 
Justice,     department     of,     250-254; 

Attorney-General,     250-253,    254; 

marshals,  253 

Kansas  v.  Colorado,  365 
Kansas-Nebraska  Act,  92 
Keller  v.  United  States,  532 
Kelley  v.  Pittsburgh,  448 
Kendall  v.  Stokes,  241 
Kilborn  v.  Thompson,  69,  281 
Knowlton  v.  Moore,  449 
Knox  v.  Lee,  461 
Kollock,  in  re,  539 

Labor,  Department  of,  267-268 

Labor  parties,  96 

Labor  Statistics,  Bureau  of,  268 

Labor  unions,  federal  judiciary  and, 
411,  420;  Anti-Trust  Act  applied 
to,  508-509;  Clayton  Act,  519, 

527 

Lafferty,  Congressman,  421 
La  Follette,  Senator,  315;  Seaman's 

Act,  498 


Land  grants,  farmers'  attitude  toward, 
97  ;  administrative  decisions,  236 ; 
office,  258 
Latane,  J.  H.,  558 
Law,  federal  Constitution  as,  40-41 
"  Law  of  the  land,"  413 
Lawrence,  J.  T.,  559 
League  of  Nations,  572-573 
Learned,  H.  B.,  207,  209 
Legal   tender,    358,   461,   462 ;    state 

paper  money,  30 

Legislation,  modification  of  federal 
Constitution  by,  2  ;  process  of  fed- 
eral, 350-356 

Legislatures  of  states.    See  States 
Leisy  v.  Hardin,  487 
Leloup  v.  Port  of  Mobile,  490 
Liberal   interpretation.  See  Constitu- 
tion 

Liberator,  The,  91 
License  Cases,  521 

Lincoln,  Abraham,  on  secession  ordi- 
nances, 59;  elected,  92,  170 
Literary  test,  497 
Little  v.  Barreme,  435 
Loan  Association  v.  Topeka,  446 
Locke,   John,    theories    in    Bills   of 

Rights,  15 
Lockner\.  New   York,  412,  414,  415, 

417,  484 

Loewe  v.  Laivler,  508,  519 
"  Log  rolling,"  473 
Lorimer  case,  299 
Lotteries,  529-532,  535 
Louisiana  Purchase,  88 
Lowell,  A.  L.,  84 
Lowell,  James  Russell,  544 
Loyalists,  not  represented  in  Revolu- 
tionary committees,  1 1 
Luther  v.  Borden,  66 
Liixton  v.  North  Bridge  Co.,  501 

McCardle,  ex  parte,  380 

McClain,  E.,  446 

McCray  v.  United  States,  447,  538 

McCready  v.  Virginia,  78 

McCulloch  v.  Maryland,  49,  58,  63,  364 

Macdonald,  William,  "  Select  Docu- 
ments," 366 

McGill,  H.  A.,  312 

"Machine,"  party,  114,  "5'  II8? 
Pennsylvania  Republican,  115;  bi- 
partisan, 119;  corrupt  primaries, 
1 20 

McKinley,  A.  E.,  5 

McKinley,  William,  99,  TOO,  171 

McLaughlin,  A.  C.,  26,  406 

McPherson  v.  Blacker,  143 


620    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Macy,  J.,  130,  151,  289 

Macy,  R.  II.,  and  Company  case,  513 

Madison,  James,  87,  no;  criticism  of 
Confederation,  26-31  ;  prepared 
Virginia  plan,  35 ;  on  federal  and 
state  relations,  40 ;  "  The  Federal- 
ist," 45 

Magna  Carta,  principles  in  state  Bills 
of  Rights,  15 

Mails,  protection  of,  538 

Mandamus,  writs  of,  issued  by  fed- 
eral courts,  400 

Manufacture  not  commerce,  483,  507 

Manufactures,  encouragement  of,  by 
Hamilton,  89 

Marbury  v.  Madison,  184,  400,  403, 
407-409 

Marine  Corps,  257 

Markets,  Bureau  of,  264 

Marshall,  Chief  Justice,  3^1-38.2, 480- 
481,  487;  on  implied  powers,  49; 
on  federal  supremacy,  58,  59,  63 ; 
on  president's  power,  178;  on  juris- 
diction of  United  States  courts, 
390-391,  392;  opinion  in  Marbtiry 
v.  Madison,  407,  417,  418  ;  on  mili- 
tary law,  435  ;  on  bill  of  credit,  462- 
463 ;  on  acquisition  of  territory,  575  ; 
on  government  of  territory,  577, 
578,  581 

Marshals,  United  States,  253 

Martial  law,  police  power,  440-441; 
use  of,  442-443 

Martin  v.  Hunter's  Lessee,  61 

Martin  v.  Mott,  189,  191,  428 

Maryland,  colonial  legislation  ap- 
proved by  proprietor,  4 ;  power  of 
colonial  governor,  8 ;  first  consti- 
tution submitted  informally  to  peo- 
ple, 13;  election,  term,  and  powers 
of  legislature,  14-15;  amendment 
of  constitution,  16;  delay  in  rati- 
fying Articles  of  Confederation, 
21 ;  trade  competition  with  Virginia, 
29 ;  Potomac  dispute  and  Annapolis 
convention,  33 ;  attitude  toward 
Bank  of  United  States,  63  ;  separa- 
tion of  powers,  68 
Mason,  E.  C.,  205 

Massachusetts,  often  opposed  royal 
governor,  4;  colonial  council 
elected,  4  ;  colonial  suffrage,  prop- 
erty qualification,  5 ;  colonial  gov- 
ernor and  council,  7  ;  committees 
of  correspondence,  10-1 1 ;  Revolu- 
tionary government,  12;  took  ad- 
vice of  Continental  Congress,  12; 
first  constitution,  13;  election, 


term,  and  powers  of  governor,  14; 
election,  term,  and  powers  of  legis- 
lature, 14-1 5 ;  amendment  of  consti- 
tution, 16;  legislature  consults 
Supreme  Court,  16-17;  called  Stamp 
Act  Congress,  18 ;  called  First  Con- 
tinental Congress,  19  ;  Second  Con- 
tinental Congress  and,  20  ;  Shays's 
rebellion,  25  ;  ratified  federal  Con- 
stitution, 45;  Bill  of  Rights  and 
separation  of  powers,  68 ;  suffrage 
restriction,  78 

May  &  Co.  v.  New  Orleans,  487 

Meriwether  v.  Garrett,  445 

Merryman,  ex  parte,  444 

Messages,  presidential,  201-204,  37° 

Mexican  War,  91 

Militarism,  American  traditions 
against,  423-424 

Military  Affairs,  House  Committee 
on,  346 

Military  government  in  peace  rests 
on  acts  of  Congress,  439 

Military  law,  434-436 ;  courts-martial, 

43S-436 

Military  and  naval  forces,  president 
commander  in  chief  of,  199 

Militia,  Anglo-Saxon  belief  in,  423- 
424;  constitutional  grants,  425;  act 
of  1792,  426-427;  legislation  of 
1903  and  1916,  427;  federalization 
of,  427;  act  of  1795,  427-428; 
decision  regarding,  in  Martin  v. 
Mott,  428  ;  where  used,  428 

Milligan,  ex  parte,  442 

Mines,  Bureau  of,  261 

Minnesota  Rate  Case,  492 

Minor  v.  Happersett,  65,  7  5 

Mint.   See  Currency 

Mississippi  River,  internal  improve- 
ments, 500 

Missouri  Compromise,  92 

Mondous  v.  N.  Y.,  N.  H.  &>  Hart.  R.  R. 
Co.,  482,  524 

Money,  greenbacks,  94,  98,  99,  101 ; 
bimetallism,  100;  power  to  coin, 
358 ;  power  to  borrow  and  coin, 
460-463;  Federal  Reserve,  465- 
466;  appropriating,  467-469 

Money  bills,  comparative  procedure, 
475-476 

Monroe,  James,  89,  1 10 

Monroe  Doctrine,  564-568 

Montesquieu,  67 

Moore,  B.  F.,  410 

Moore,  J.B.,  551,552,560,568,569,576 

Morality,  private,  Congress  and  the 
field  of,  532-534 


INDEX 


621 


Morgan  v.  Munn,  231 

Morris,   Robert,   saw  weaknesses    of 

Confederation,  24 
Morse,  A.  D.,  83 
Motion  Picture  Patents  Co.  v.  Universal 

Film  Co.,  513 
Moyerv.  Peabody,  441 
Munn  v.  Illinois,  492 
Mtirray^s  Lessee  v.  Hoboken  Land  and 

Improvement  Co.,  235 
Mylius  case,  239 

Nathan  v.  Louisiana,  482 

National  Army,  430-433 

National  Bank  v.  Commonwealth,  64 

National  bank  notes,  465 

National  executive,  under  Virginia 
plan,  35 

National  Farmers'  Alliance,  98 

National  government,  composition  of 
powers  under  Confederation,  21- 
23 ;  under  Articles  of  Confedera- 
tion, 21-31  ;  public  debts  under 
Confederation,  27  ;  under  Confed- 
eration lacked  coercive  power  and 
popular  support,  30-3 1 ;  under  Con- 
federation did  not  operate  on  indi- 
viduals, 31;  under  Hamilton's  plan 
of  1780,  32  ;  under  Virginia  plan,  35 

National  Guard,  429,  430,  431 

National  judiciary,  under  Virginia 
plan,  35 

Naturalization,  79 ;  Bureau  of,  268 ; 
power  of  Congress,  360 

Navigation,  Bureau  of,  267 

Navigation  and  inspection  law,  498 

Navy,  Department  of,  256-257,  429- 
430;  legislation  of  1917  and  1918, 

430-433 

Neagle,  in  re,  63,  178-179 

Nereide,  The,  569 

Neutrality,  559;  doctrine  of,  559-560; 
of  United  States  in  World  War, 
560 ;  enforcement  of,  562  ;  in  case  of 
revolted  colony,  561-562  ;  mainte- 
nance of,  563-564 ;  United  States 
influence,  570 

Neutrals,  rights  of,  561 

New  England,  colonial  suffrage,  5 ; 
colonial  clergy  and  colleges  pre- 
dominant, 9 ;  colonial  property 
qualifications  for  suffrage,  9 ;  gov- 
ernors, election,  terms,  and  powers, 
13-14;  state  commercial  competi- 
tion under  Confederation,  29 

New  Hampshire,  first  constitution,  13; 
amendment  of  constitution,  16; 
ratified  federal  Constitution,  45 


New  Jersey,  committees  of  corre- 
spondence, 1 1  ;  courts  of,  claimed 
power  to  annul  legislation,  16; 
agreement  with  Pennsylvania  about 
Delaware  River,  28;  trade  with, 
taxed  by  New  York  and  Pennsyl- 
vania, 29 ;  on  small  state  plan,  37- 
38;  ratified  federal  Constitution, 
45 ;  woman  suffrage,  65 
New  Orleans  v.  New  York  Mail  Steam- 
ship Co.,  578 

Neiv  Orleans  v.  Steamship  Co.,  193 
New  York,  colonial  suffrage,  5 ;  colo- 
nial   landed    aristocracy,   9 ;    elec- 
tion, term,  and  powers  of  governor, 
14 ;  tax  on  Connecticut  and  New 
Jersey    trade,    29;     recommended 
national  convention  (1782),  33 ;  rati- 
fied federal  Constitution,  45 ;   Re- 
publican party  in,  115;  Republican 
leadership,  122 
New  York  v.  Milne,  484 
New  York  bakers'  case,  411,  413 
New  York   City,  rich   colonial  mer- 
chants,   9 ;     Democratic    machine, 
115,   117 

Nobility,  title  of,  grant  forbidden,  56 
Nomination,  106,  108 ;  by  state  legis- 
latures, 1 10;  state  conventions,  1 10; 
national  conventions,  1 1 1 ;  of  presi- 
dent, 149,  150;  of  president  (1912), 

I52-I,54 

Nonintervention,  policy  of,  568 
North  Carolina,  first  constitution  sub- 
mitted,   13;    election,    term,    and 
powers  of   legislature,  14-15;    im- 
peachments before  the  courts,  15; 
ratified  federal  Constitution,  45 
Northern  Securities  Case,  507-508 
Northwest  Ordinance,  586-587 
Nullification,  91 

Obiter    dicta,      in     Supreme     Court 

opinions,  403 
Obstruction,  in  House,  337  ;  Speaker 

in,  339-342  ;  in  Senate,  343~354 
Odell,  B.  B.,  172 
"Officer  of  United  States"  defined, 

182 

Ogden,  R.,  133 
Ohio  River,  internal  improvements, 

500 

Oklahoma,  suffrage  requirements,  296 
Oleomargarine  case,  486,  538-539 
"  Open  door,"  568 
Oppenheim,  L.f  556,  559 
"  Original  package,"  487 
Osborn  v.  Bank,  392 


622    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Ostrogorski,  M.,  120 
Otis,    James,    popularized     Locke's 
theories,  15 

Pacific  States  Telegraph  and  Telephone 

Co.  v.  Oregon,  65 
Panama  Canal  Commission,  249 
Panama  Canal  Zone,  government  of, 

591 

Panama  treaty  (1903),  557 

Pan-American  Union,  269 

Paper  money,  461,  464,  465  ;  congres- 
sional bills  of  credit  under  Confed- 
eration, 23 ;  "  continental  currency," 
depreciation,  27-28 ;  used  to  finance 
Revolution,  27-28 ;  states  forbidden 
to  issue,  39,  56;  bills  of  credit, 
462-463 

Paquette  Havana,  The,  569 

Pardon.   See  Congress  and  President 

Parishes,  colonial  representation,  5 

Parliament,  sovereign  power  over 
colonial  charters,  3 

Parliamentary  system,  English,  369 

Parsons,  Herbert,  135,  136,  172 

Party  committee,  national,  in,  112, 
113,  127;  state  and  county,  125; 
state  and  national,  128-129 ;  country 
and  city,  129;  state  regulation,  136; 
national  origin,  powers,  and  func- 
tions, 151-153;  national  influence, 
154-155,  156;  selection  of  national, 
163 ;  selection  and  influence  of 
chairman,  163-164;  treasurer  of 
national,  1 64 ;  activity  of  national 
and  state,  165 

Passenger  Cases,  497 

Patent  Office,  257 ;  Clayton  Act, 
258 

Patents  and  copyrights,  511-515 

Paterson,  William,  New  Jersey  plan, 
37-38;  on  constitutional  supremacy, 
409 

Patrons  of  Husbandry,  98 

Paul  v.  Virginia,  490 

Peace  and  war,  power  in  Congress 
under  Hamilton's  plan  of  1780,  32 

Peace  treaty  (1919),  Senate  defeats, 

573 

Peckham,  Justice,  402 

"  Peddlers,"  490-491 

Pedro,  The,  437 

Pendleton  Act,  226 

Pennsylvania,  proprietary  and  royal 
approval  of  colonial  legislation,  4 ; 
single-chamber  legislature,  4,  8 ; 
colonial  suffrage,  5  ;  colonial  appor- 
tionment of  representation,  5-6; 


relations  of  colonial  legislature 
and  governor,  8;  colonial  landed 
aristocracy,  9 ;  first  constitution,  13; 
Declaration  of  Rights,  1 5 ;  amend- 
ment of  constitution,  16;  recog- 
nized depreciation  of  continental 
currency,  27  ;  agreement  with  New 
Jersey  about  Delaware  River,  28 ; 
discrimination  against  Delaware 
and  New  Jersey  trade,  29  ;  ratified 
federal  Constitution,  45 ;  suffrage, 
78;  Republican  machine,  115,  116 

Pensacola  Tel.  Co.  v.  Western  Union 
Tel.  Co.,  482,  536 

Pension  Office,  260-261 

Pensions,  military,  439 

People,  constitutional  powers  re- 
served to,  55 

Personal  liberty,  federal  protection 
of,  56 

Philadelphia,  rich  colonial  mer- 
chants, 9 

Philadelphia  Steamship  Co.  v.  Penn- 
sylvania, 493 

Philippine  act  of  1902,  440 ;  act  of 
1917,  591 

Philippine  commission,  590,  592 

Philippines,  250;  District  Court  of, 
386;  military  government  of,  439- 
440 ;  government  of,  580 ;  prob- 
lems in  acquisition,  583 ;  political 
status,  589;  government,  590-591 

Plant  Industry,  Bureau  of,  262 

Platforms,  political,  106 

Platt,  T.  C.,  172 

Plumley  v.  Massachusetts,  486 

Police  power,  of  states,  484-486; 
federal,  521-539;  delegated,  521; 
in  interstate  commerce,  522-527 ; 
for  general  public,  527-536;  mis- 
cellaneous methods  of  exercising, 
536-539 ;  exercised  by  taxation, 

538-539 

Political  parties,  practice  modifies 
federal  Constitution,  2  ;  definition 
of,  83 ;  organization,  83 ;  policy, 
83 ;  in  England,  83  ;  functions  in 
United  States,  84;  at  first,  extra- 
legal,  84  ;  connection  with  officials, 
85 ;  effect  of  economic  interests 
on,  85,  86,  90 ;  before  Revolution, 
86  ;  under  Confederation,  86,  87  ; 
right  of  legal  opposition,  88 ;  effect 
of  1824  election,  90;  Democratic, 
90,  93,  103 ;  Whig,  90 ;  Abolition, 
91 ;  Free  Soil,  91 ;  '  Republican, 
92;  Greenback,  94;  Silver,  95; 
Labor  Reform,  96 ;  Socialist  Labor, 


INDEX 


623 


96;  Socialist,  96;  Populist,  97; 
Unionist,  98;  National  Farmers' 
Alliance,  99;  revolt  against  old,  102  ; 
Progressive,  103;  organization  of, 
106-139;  platforms,  106;  all  na- 
tional, 1 06,  107  ;  federal  organiza- 
tion, 107 ;  caucus,  108 ;  nomina- 
tion, 106,  108,  no,  in;  conven- 
tions, 109,  no,  in,  123-124, 
154-163;  relation  of  state  and  na- 
tional organizations,  in;  national 
committee,  in,  112,  113;  state 
committee,  1 1 1 ;  congressional  com- 
mittee, 113;  machine,  114,  118; 
boss,  114;  state  tactics,  114,  115; 
doubtful  states,  115;  state  organiza- 
tion, 115;  Tammany,  117;  work  of 
the  organization,  118,  119;  state 
regulation,  120,  136;  tests  of  mem- 
bership, 122;  campaign,  127-128; 
committees,  125-129;  registration, 
129;  canvass,  129,  130;  function, 
137  ;  English  system,  137,  138;  na- 
tional, state,  and  municipal  coopera- 
tion, 138,  139;  unforeseen  in  1787, 
149;  conflict  with  states,  153,  166; 
judiciary  reluctant  to  interfere  in 
party  disputes,  166-167;  relation  to 
president,  168-174;  not  understood 
before  1800,  169;  civil  service,  221- 
232 ;  organization  in  Congress,  310- 
316;  two-party  system,  310-311; 
congressional  caucus,  311-316;  re- 
lation of  Speaker  to  his  party,  318- 
326 ;  floor  leaders  in  Congress, 
327-329;  caucus  and  committee 
systems  may  develop  responsibility, 
346 ;  distrust  of,  370 ;  and  selection 
of  federal  judges,  381-382;  criti- 
cism of  federal  judiciary,  418-421 ; 
on  protective  tariff,  495 
Politics,  definition  and  function,  82 
Pollock  v.  Farmers  Loan  and  Trust  Co., 

403,  415,  419,  450,  451 
Popular     sovereignty,     in     Bills     of 

Rights,  15 

Populist,  or  People's,  party,  97  ;  plat- 
form (1891),  98,  99,  102 
"Pork  Barrel  Bills,"  471,  499-501 
Porto  Rico,  250;   District  Court  of, 
386 ;  problems  in  acquisition,  583 ; 
political    status    and    government, 
589;   citizenship,  590;   act  of  1917, 

590 

Post  office,  359;  federal  regulation 
of,  53;  fraud  orders,  236;  Depart- 
ment of,  254-256:  House  Com- 
mittee on,  346 


Postal  regulations,  536-537 

Potomac  River,  dispute  between 
Maryland  and  Virginia  as  to  naviga- 
tion, 33 

Pound,  Roscoe,  relation  of  court  to 
legislation,  417-418 

Powell,  Thomas  Reed,  235 

President,  checks,  42 ;  election,  42- 
43,  140-167  ;  powers  of,  42,  53,  66, 
168-206;  tenure  of  office,  69,  140- 
141 ;  relations  to  Congress  and  to 
courts,  70  ;  conflict  with  party,  85 ; 
electors,  141-143, 144-165;  indirect 
election,  143;  general  state  tickets 
and  doubtful  states,  143;  count  of 
votes,  144 ;  count  by  Congress, 
144-145;  Twelfth  Amendment,  145- 
146;  law  of  1887,  145  ;  decisions  by 
House  and  Senate,  146,  147;  im- 
peachment, 148-149  ;  nomination, 
149-153;  nominating  conventions, 
154-163;  as  party  leader,  168-174; 
party  and  partisan,  169;  influence 
of  party,  170  ;  personality,  170, 171 ; 
popular  support,  171  ;  represents 
whole  country,  171 ;  appeal  to  pub- 
lic opinion,  172,  202,  203;  power 
of  appointment,  172,  173,  181-188, 
371;  dictator  of  party,  173;  as 
executive,  173,  181 ;  intended  as 
party  leader,  174;  reasons  why  ad- 
ministrative head,  175;  sources  of 
executive  powers,  175-176;  execu- 
tive powers,  175-181 ;  enforcement 
of  laws  not  always  reviewable  by 
court,  177 ;  powers  implied  from 
Constitution,  177;  enforcement  of 

•  treaties,  178;  inherent  power,  178, 
179,  1 80;  public  opinion  on  in- 
creasing power  of,  180-181 ;  power 
of  removal,  181-188;  personal  repre- 
sentatives, 182  ;  process  of  appoint- 
ment, 184-186;  cabinet  officers, 
185  ;  recess  appointments,  186 ;  im- 
plicit power  of  removal,  187,  188; 
sources  of  war  powers,  188 ;  war 
powers,  188-198;  war  powers  dis- 
cretionary, 189;  use  of  force,  189- 
190;  war  and  peace,  190-194; 
militia,  192,  426-427;  state  of  war, 
192,  194;  military  government,  193, 
1 94 ;  limitations  of  pardoning  power, 
195;  pardoning  power,  195-198;  this 
power  independent  of  Congress, 
196,  197;  foreign  affairs,  199- 
201 ;  recommendations  to  Congress, 
201;  messages,  201-204,  370,  547; 
legislative  power,  201-206;  veto, 


624    THE  GOVERNMENT  OF  THE  UNITED  STATES 


202, 204-206, 370-37 1 ;  cabinet,  207- 
217;  control  of  cabinet,  220;  ad- 
ministrative regulations,  233,  234, 
235 ;  no  administrative  liability, 
241 ;  as  leader  of  Congress,  309 ; 
approval  of  legislation,  356;  draft- 
ing bills,  372  ;  no  seat  in  Congress, 
373;  appointment  of  federal  judges, 
381-382  ;  conduct  of  war,  438 ;  dele- 
gated power  over  tariff,  495-496; 
and  Senate  in  negotiating  treaties, 
549-55o>  enforcement  of  neutral- 
ity, 562 

Presidential  succession,  147  ;  law  of 
1792,  147-148  ;  law  of  1886,  148 

Previous   question,   in   House,   338- 

339 

Prices  fell  during  Confederation,  24 

Primary,  106,  119;  corrupt,  120; 
open,  121  ;  closed,  121-122;  state 
regulation,  122, 136;  functions,  122; 
direct,  125-126;  effect  of  direct,  on 
presidential  conventions,  159-160 

Privateering,  profit  missed  during 
Cbnfederation,  24 ;  abolished,  438 

Prize  Cases,  192,  194 

Progressive  party,  103 

Property,  protected  by  Bills  of  Rights, 
15;  "primary  object  of ,  society," 
42 ;  private,  for  public  use,  56 ;  in- 
fluence on  parties  and  government, 

85 

Prosperity,  beginning  in  United  States 
after  1787,  25,  101 

Public  Clearing  House  v.  Coyne,  236 

Public  debt,  national,  under  Confed- 
eration, 27 

Public  health  service,  247 

Public  lands,  258-259;  reclamation 
service,  259-260 

Public  opinion,  Supreme  Court  and 
Eleventh  and  Sixteenth  Amend- 
ments, i ;  controls  judicial  interpre- 
tation of  federal  Constitution,  2 

Public  printer,  268 

"  Public  purpose,"  for  federal  taxa- 
tion, 446,  448 

Public  roads  and  rural  engineering, 
264 

Public  service  corporations.  See 
Transportation  and  Railroads 

Public  works,  under  War  Department, 
248 

Pullman  strike,  420 

Punishment,  cruel  and  unusual,  Bills 
of  Rights,  1 5 

Pure  Food  and  Drugs  Law,  262-263, 
469 


Puritans,  hatred  of  militarism,  423 

Quakers,  representation  in  colony  of 
Pennsylvania,  6 ;  hatred  of  war, 
423 

Rahrer,  in  re,  488 

Railroad  Act  of  1910,  388 

Railroad  Co.  v.  Husen,  482 

Railroads,  regulation,  96,  97,  101  ; 
land  grants  to,  97  ;  state  regulation 
of,  491-493;  government  operation 
during  war,  505 ;  Adamson  Law, 

525-526 

Randolph,  Edmund,  recommended 
amendments  to  Confederation,  32 ; 
in  federal  Convention  offers  Vir- 
ginia plan,  35  ;  resolutions  for  new 
Constitution,  36 

Rasmus  sen  v.  United  States,  585 

Rates,  public  service  corporations, 
491-492;  federal  regulation  of  in- 
terstate, 501-505 

Rebates  and  secret  agreements,  504 

Recall,  of  judges,  421 ;  of  judicial 
decisions,  422 

"Recess  appointments,"  186 

Reciprocity,  496 

Recognition,  570 

Reinsch,  P.  S.,  119,  191,  285,  286,  289, 
292,  298,  303,  315,  351,  367 

Representation  in  Congress,  appor- 
tionment under  Virginia  plan,  35 ; 
compromise  in  federal  Convention, 
39 ;  apportionment,  288-289 

Representatives,  favors  for  districts, 
272 

"  Republican  form  of  government," 
65 ;  congressional  reconstruction, 
66 

Republican  party,  origin,  91 ;  abolition 
movement,  91  ;  platform  of  1856, 
92  ;  effect  of  Civil  War  on,  92,  93  ; 
campaign  of  1896,  99;  effect  of 
World  War  on,  105;  Pennsylvania 
machine,  115,  116;  control  of 
Vermont  and  Iowa,  115;  in  New 
York  State,  115;  convention  of 
1912,  155,  157,  161 ;  Southern  dele- 
gates at  conventions,  157-158; 
apportionment  of  delegates,  158; 
nomination  in  convention,  162; 
criticism  of  judiciary,  420 ;  for  pro- 
tective tariff,  495 

Requisitions  during  Revolution  and 
Confederation,  part  paid  by  states, 
27 

Respublica  v.  De  Longchatnp,  569 


INDEX 


625 


Revenue  legislation,  285-286,  452- 
455 ;  motives  political,  452-453 ; 
framing  and  enacting  tariff  acts, 

453-455 

Revolution,  American,  of  1776,  mili- 
tary and  political  problems,  10; 
preliminary  agitation,  10 ;  revolu- 
tionary party  superseded  British 
government,  1 1  ;  unemployment 
problem,  24 ;  lowered  respect  for 
government,  25  ;  spread  of  theories 
of  equality  and  democracy,  25 ; 
"  natural  rights  "  doctrine  used  by 
states  against  Congress,  26;  how 
financed,  27 

Rhode  Island,  colonial  legislation  not 
subject  to  royal  veto,  4 ;  colonial 
council  elected,  4 ;  colonial  as- 
sembly controlled  governor  and 
council,  8 ;  appeals  from  colonial 
courts  to  England,  8-9 ;  free  from 
royal  and  proprietary  officials,  9; 
used  colonial  charter  as  state  con- 
stitution, 13;  courts  declared  legis- 
lation unconstitutional,  17  ;  refusal 
to  ratify  five  per  cent  tariff,  26; 
not  represented  in  federal  Con- 
vention, 34,  44;  ratified  federal 
Constitution,  45  ;  power  of  execu- 
tive, 68 

Rhodes  v.  Iowa,  488 

Richardson,  J.  D.,  197,  224,  562 

"Riders,"  219,  376 

River  and  harbor  bills,  469,  471 

River  and  harbor  improvement,  un- 
der War  Department,  248,  249 

Rivers  and  Harbors,  House  Commit- 
tee on,  346 

Robbins  v.  Shelby  County  Taxing  Dis- 
trict, 490 

Robinson,  E.  E.,  572 

Roosevelt,  Theodore,  73,  102,  103, 
153, 154,  170,  171, 172;  civil  service, 
228  ;  theory  of  federal  sovereignty, 
365 ;  recall  of  judicial  decisions, 
422,  432  ;  Santo  Domingo,  552 

Root,  Secretary  Elihu,  424,  489 

"  Rough  Riders,"  431 

Royal  instructions  as  colonial  written 
constitutions,  3 

"  Rule  of  Reason,"  509-510 

Safety  Appliance  Act,  522-523 

St.  Loriis,  Iron  Mountain  &*  Southern 

R.  R.  Co.  v.  Taylor,  522 
St.  Louis  Terminal  Association  case, 

510 
Samoan  Islands,  government  of,  591 


Sanatogen  case,  512 

Sanderson,  J.  F.,  205 

Schollenberger  v.  Pennsylvania,  486 

Seaman's  Act  (1915),  498 

Second  Employers' Liability  Cases,  524 

Secretary  of  State,  540 

Seligman,  E.  R.,  459,  460 

Senate,  diplomatic  and  appointing 
powers,  42  ;  power  of  confirmation, 
182,  184,  186;  represents  states, 
'$72;  executive  sessions,  283  ;  quali- 
fications for  membership,  298  ;  dis- 
abilities, 299;  contested  elections, 
299-300 ;  terms  of  senators,  300, 
301  ;  continuous  body,  301  ;  privi- 
leges, 301-302 ;  presiding  officer, 
302,  326;  represents  equality  of 
states,  302-304 ;  elections,  304- 
307 ;  vacancies,  307 ;  permanent 
rules,  343 ;  debate  unlimited  until 
1917,343;  filibuster,  343-344  ;  com- 
mittees, 347-348 ;  negotiation  and 
ratification  of  treaties,  549-551 ;  de- 
feated peace  treaty  and  League  of 
Nations  (1919),  573-  See  also  Con- 
gress 

"  Senatorial  courtesy,"  185 

Senators,  direct  election  of,  102 

Separation  of  powers,  in  Federal  Con- 
stitution, 42,  67-73  »  conception  of 
English  Constitution,  67  ;  Montes- 
quieu, 67  ;  Blackstone,  67  ;  colonial 
experience,  67  ;  state  constitutions, 
68 ;  Articles  of  Confederation,  68 ; 
interpretation  by  courts,  69  ;  excep- 
tions, 70,  71  ;  true  theory,  71 ;  Wil- 
loughby  on,  71  ;  criticism  of  judi- 
ciary by  Jefferson  and  Harlan,  72  ; 
encroachment  ^  of  legislature,  72; 
extension  of  executive  powers,  73  ; 
""""Congress  may  not  violate,  183  ;  par- 
doning power,  197;  prevents  cabi- 
net system,  308-309 

Sere  v.  Pi  tot,  577 

Seven  Cases  v.  United  States,  528,  529 

Sewall,  Arthur,  99 

Shays's  rebellion,  showed  weakness 
of  Confederation,  25,  30;  paper 
money  and  Federal  Constitution,  45 

Sherley,  Congressman,  467,  476,  478 

Sherman,  John,  213 

Sherman  Anti-Trust  Act,  101,  104, 
506-510;  interpretation  of,  by  court, 
509-510;  patents  and  copyrights, 
511-515 

Sherman  Silver  Purchase  Act,  85,  95 

Shipping  Board,  269 

Short-term  notes,  460 


626    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Shreveport  Case,  492,  502-504 

Siebold,  ex  parte,  60,  293 

Silver  certificates,  464 

Silver  party,  95  ;  free  silver,  98,  99 

Simpson  v.  Shepard,  492 

Slaughter  House  Cases,  66,  75,  76 

Slavery,  90, 91,  92  ;  Thirteenth,  Four- 
teenth, and  Fifteenth  Amendments, 
effect  of,  i  ;  in  territories,  582,  583, 

585 

Slichter,  Sumner  H.,  518 

Smelting  Co.  v.  Kemp,  236 

Smithsonian  Institution,  269 

Smoot  case,  299 

Socialist  Labor  party,  96 

Socialist  party,  96 

Soils,  Bureau  of,  263 

South  Carolina,  colonial  apportion- 
ment of  representation,  5-6;  first 
constitution  framed  and  adopted 
by  legislature,  13;  constitution  of 
1778, 13;  election,  term,  and  powers 
of  governor,  14;  election,  term, 
and  powers  of  legislature,  14-15; 
amendments  to  constitution,  16; 
Dispensary  Law,  488 ;  Railroad 
Commission,  491 

Southern  Railway  Co.v.  United  States, 

523 

Sovereignty,  of  people,  recognized 
in  Bills  of  Rights,  15-16,  17;  not 
clearly  recognized  as  in  people,  26 ; 
popular,  in  United  States,  47,  48 ; 
federal  and  state,  57  ;  lack  of, 
in  Articles  of  Confederation,  57 ; 
federal  supremacy,  58  ;  theory  of 
inherent  federal,  364-366;  Jeffer- 
sonian  theory,  366-369 ;  empiric 
theory,  367-368  ;  inherent,  461 ;  of 
states  (see  State  rights) ;  of  national" 
government  (see  National  govern- 
ment) 

Speaker,  316-326;  election,  318; 
qualifications,  318-319;  powers, 
320-324 ;  powers  curtailed,  324- 
326;  relation  to  Committee  on 
Rules,  329-331  ;  action  on  obstruc- 
tion tactics,  339-342 

Spoils  system,  224-22 j;  ^ 

Spooner,  Senator,  190-191 

Springer*-?.  United  States,  236,  450 

Springville  City  v.  Thomas,  583 

Stamp  Act  Congress,  18-19 

Stamp  tax,  456,  457 

Standard  Oil  case,  509 

Standard  Oil  Trust,  101,  506 

Standards,  Bureau  of,  267 

Stanwood,  E.,  419,  420 


State,  Department  of,  540-541;  or- 
ganization and  duties,  245,  246 

State  banks,  political  issue  in  West, 
90 ;  federal  taxation  of  notes,  538 

State  Freight  Tax  case,  493 

State  rights,  foreshadowed  at  First 
Continental  Congress,  19;  sover- 
eignty of  states  preserved  by  Arti- 
cles, 21  ;  use  of  Revolutionary 
"natural  rights'"  doctrine,  26;  in 
federal  Convention,  36-37  ;  and 
federal  supremacy,  89,  571 

State  tax  on  railroad  gross  receipts, 

493 

States,  experience  in  government 
aided  Convention  of  1787,  2;  ex- 
governors  in  Convention  of  1787, 
2 ;  first  constitutions  limited  gov- 
ernor's power,  8 ;  beginnings  of 
government,  10 ;  government,  legal, 
before  1783,  10;  relations  with 
Continental  Congress,  10,  18-20 ; 
first  constitutions  framed  and 
adopted,  11-13;  ^rst  constitutions 
reflect  revolutionary  theories  and 
colonial  experience,  13;  Bills  of 
Rights,  13,  15  ;  election,  term,  and 
powers  of  governors  under  first 
constitutions,  13-14;  election,  term, 
and  powers  of  legislatures,  14-15; 
impeachments,  1 5 ;  legislatures  sub- 
ject to  constitutions  and  to  people, 
15-16;  provisions  for  amendment 
of  constitutions,  16;  power  of 
courts  to  declare  legislation  uncon- 
stitutional, 16-17;  governments  cre- 
ated by  Continental  Congress,  18  ; 
relations  with  national  government 
during  Confederation,  21-31  ;  sov- 
ereignty under  Articles  of  "Confed- 
eration, 21  ;  equal  representation 
under  Confederation,  22 ;  oppo- 
sition to  British  government 
transferred  to  Congress,  25-26; 
violations  of  Articles  of  Confedera- 
tion, 26-30 ;  heavily  in  debt  after 
Revolution,  26;  responsible  for  con- 
tinental currency,  27  ;  treaties  with 
each  other  and  with  Indians,  28  ; 
violations  of  treaties  under  Confed- 
eration, 29  ;  issue  of  paper  money, 
30;  made  paper  money  legal  tender, 
30;  internal  unrest  during  Con- 
federation, 30  ;  failure  to  cooperate 
during  Confederation,  30-31  ;  acts 
under  Confederation  uncontrolled 
by  national  government,  31  ;  powers 
under  Hamilton's  plan  of  1780,  32  ; 


INDEX 


627 


proposals  to  allow  Congress  to 
coerce,  31-32  ;  large  and  small  state 
parties  in  federal  Convention, 
37  ;  compromise,  38 ;  prohibitions 
on,  in  Federal  Constitution,  39,  54; 
federal  Supreme  Court  to  decide 
cases  between,  40-41 ;  all  but 
Rhode  Island  represented  in  fed- 
eral Convention,  34;  and  Civil  War 
Amendments,  51,  66;  and  Eight- 
eenth Amendment,  52 ;  powers  re- 
served, 51,54;  control  over  social 
relations,  52 ;  concurrent  powers,  54 ; 
federal  coercion  of,  59 ;  taxation 
of  salaries  of  officials  by  federal 
government,  64  ;  federal  courts  de- 
termine powers,  66 ;  separation  of 
powers  in  constitutions,  68;  suffrage 
and  office-holding  regulations,  78 ; 
interstate  comity,  80;  extradition 
between,  80-8 1  ;  conflict  with  poli- 
tical parties,  153;  diverse  citizen- 
ship and  federal  courts,  394;  federal 
courts  may  disregard  statutes,  396- 
397  ;  federal  judiciary  reviews  laws, 
409-410;  and  militia,  426-428;  fed- 
eral tax  discrimination  forbidden, 
449 ;  regulation  of  commerce,  483- 
487;  police  power,  484-486,  521; 
regulation  of  business,  489-491  ; 
regulation  of  transportation,  491- 
493;  taxation  of  interstate  com- 
merce, 493  ;  and  interstate  carriers, 
503-504;  federal  regulation  of  inter- 
state commerce  within,  499 ;  passed 
through  territorial  stage,  586-587  ; 
division  of  powrers  with  federal 
government  (see  Division) 

Steamboat  Inspection  Service,  267 

Steel  Trust,  101 

Stimson,  F.  J.,  50,  52,  53,  55 

Story,  Justice,  201,  414,  446 

Strauss  v.  Victor  Talking  Machine 
Co.,  514 

Strauss  and  Strauss  v.  American  Pub- 
lishers Association,  513 

Strict  interpretation.  See  Constitution 

Suffrage,  colonial,  4,  5;  under  first 
state  constitutions,  14-15;  demand 
for  extension  during  and  after 
Revolution,  25;  woman,  65;  right 
of,  not  necessary  privilege  of  citizen- 
ship, 78  ;  aliens  and,  79  ;  territorial, 
588 ;  Porto  Rico,  589,  590 

Sumner,  Charles,  civil  service  reform, 
225 

Supervising  Architect,  247 

Supplementary  estimates,  470 


Supreme  Court,  jurisdiction  between 
states,  41  ;  of  United  States  (see 
Judiciary) 

Surtax.   See  Income  tax 

Swift  v.  Tyson,  396 

Taft,  William  Howard,  102,  103,  153, 
154,  170,  172,  173,  179;  on  civil 
service,  228;  on  injunctions,  421, 
474,  475,  495  ;  and  arbitration,  571 

Tammany  Hall,  117 

Taney,  Chief  Justice,  58,  59,  60,  417, 
420,  583 

Tariff,  power  of  Congress  under 
Hamilton's  plan  of  1 780, 32 ;  powers 
of  Congress  under  New  Jersey  plan, 
37  ;  states  forbidden  to  lay,  39-40 ; 
Whigs,  90;  Republicans,  92;  Demo- 
crats, 93,  103;  president  may  in- 
crease duties,  176;  administrative 
decision,  236;  protective,  446-447, 
494  ;  politics  and,  453 ;  preparation 
of  bills,  453-454 

Tariff  Act  of  1909,  388;  corporation 
tax,  515 

Tariff  Commission,  270 

Tawney,  Congressman,  467,  470 

Taxation,  power  denied  Congress 
under  Confederation,  23 ;  federal 
power  limited,  56;  power  of  Con- 
gress, 357-3S8'  445-452;  defini- 
tion of  "  tax,"  446 ;  tariff,  446-447 ; 
"public  purpose,1'  446,  448;  emi- 
nent domain,  447 ;  due  process,  448 ; 
uniformity,  448-449;  direct,  450- 
451;  progressive  rate,  452 ;  kinds 
and  collection,  455-460 

Tennessee  v.  Davis,  61 

Tenure  of  Office  Act,  149,  187,  188 

Territories,  government  of,  574-592 ; 
federal  power  to  acquire,  574,  575  ; 
methods  of  acquisition,  576-577, 
578-581  ;  power  to  govern,  577- 
578 ;  military  government  tempo- 
rary, 578-579 ;  limitations  in  power 
to  govern,  581-585 ;  citizenship,  587, 
590;  suffrage,  588,  589;  effect  of 
policy  of  United  States,  592^ 

Texas,  annexation,  91 

Texas  v.  White,  440 

Thayer,  J.  B.,  3 

Thomas,  D.  Y.,  287 

Thorpe,  F.  N.,  586 

Tilden,  Samuel  J.,  93 

Tobacco  Trust  case,  415,  509 

Tonnage  dues,  495 

Tories.   See  Loyalists 

Towns,  colonial  representation,  5 


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